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<br />, '. <br /> <br />Edward Kowalski <br />Danil;! McAllliftc <br />July 20, 2000 <br />Pagl; 2 <br /> <br />. <br /> <br />Golden al~o questions whether it is appropriate to discuss its right, and any similar rights, <br />as "recreational instream Haws." This is a misnomer. Golden's application in 98CW448, for <br />example, is clearly a "!liversion" lUlder conlrolling legal authority, and should be re~en'ed to as <br />such. <br /> <br />Under Colorado statute: <br /> <br />"Diversion" or "divert" means rerhOvingwater from its natural eow'se or location, <br />OJ' cont.-ollinl: water in its Ollttirai course or location. by means of a ditch, <br />canal, flume: reservoir, bypass, pipeline, conduit, well, pump, or other structure or <br />device, <br /> <br />C.R,S, * 37-92-103(7)(clllphasis added). <br /> <br />Golden filed its water right to secure water for its world class kayak COUrsc. The desibrn <br />and construction of that highly cnginecred course was an extensive and expensive undertaking. <br />The course contains manv dams and other structUres that control, concentrate and direct the now <br />of water through the course. In constming c.R.~. S 37-92-103(7), the Colorado Supreme Court <br />explained, "controlling water within its natural course or loc.ation by some stnlcture or device for <br />a bcnefieialllsc thus m,lY result in a valid appropriation." .c.Lty of Thomton v, Citv ofrort <br />CD.llins, 830 P.2d 915, 930 (Colo. 1992). The Court in City of Thornton went on at length to <br />point out the tJif'I'ercnces bctween an instream flow and the genuine "diversion" crcatcd by the <br />stnlclures at issue in thM case. Id. at 930-931. <br /> <br />. <br /> <br />A sccond di rJerence between Golden's right and an instream flow is that the purpose of <br />an inslrcam flow, as explained in thc statute, is to "preserve the natural environment to a <br />reasonable degree." C.R.S. ~ 37-92-103(3), Although good scenery and some prescrvation of <br />the natural environment are incidental bencfits from Golden's application, these were not <br />Goldell's primary purposes in seeking the water right at issue, and they are not the beneficial uses <br />that supportlhe application. Golden sought the water right not to protect "the nahlral <br />environment," but to protect its substantial illvestment in the kayak course, i.e. so that the course <br />would be useJble and altnlctive to boaters, and would invigorate Golden's downtown watelway <br />:111d eCDnomy. In this regard, this course is heavily used by the general public 365 days a year, <br />has bcen thl; site of many national and internati(mal competitions, and spurred a major <br />rcd(:vclopillcnt through the center ofthc City. <br /> <br />. <br /> <br />phl1025 <br />