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<br />. , <br /> <br />Edwnnl Kownlski <br />Daniel McAulilTc <br />July 20. 2000 <br />P,lgC 4 <br /> <br />. <br /> <br />has, as an unintcndcd consequence, the potential to increase the amount of water delivered across <br />the State line. <br /> <br />To illustrate tbis "paradc ofh011'ibles," the mcmo hypothesizes a '''world class' kayak <br />course in Fruita, Colorado. . . designed and paid for by the City of Las Vcgas." Memo at 3. Just <br />'L~ with applicatious for other typcs of water righls, such a hypothetical situation is effectively <br />mldn:ssed by the many law, and doctrines in Colorado that prevent speculation and lhe <br />exportation or water outside of Colorado. For example, if the Fruita coursc wcre paid for by Las <br />Vegas, it is doubtfulthal Fruita could prove the requisitc intent to initiate a water right. <br /> <br />Thus, both lhc first and second "problems" arc present in any water right application. <br />Like any other application, a boating course diversion must be tested against the doctrine of <br />hl'l1clicial use, "can and will," and thc other principles of prior appropriation that were decided in <br />the ,FQfl Collins case. Where un npplieation passes those tesLs, a water right should be decreed, <br />and the Colorado Supreme Court has rendered its decision on this issue. Should an exportation <br />issuc arisc in the flltur~, we are confident that the Supreme Court has ample laws at its disposal <br />to prevent the loss of any compact entitlement. <br /> <br />That brings us to the third alleged problem--that applications like Golden's would <br />"detract fromlhc Slale's instrcam flow program:' How? Where is the impact? As pointed out <br />above, Golden's kayak course appropriation and others like it are not "in stream appropriations" <br />ill fact or law. <br /> <br />. <br /> <br />Th~ memo's analysis on this third point argues that "recreational instream flow waler <br />rights have no babncing requirements in their appropriations." Memo at4. That is not accurate, <br />Such applications have many inherent Iirnilalionsnphysicallimitations imposed by the size oflhe <br />comsc, the stremll, how the course "can and will" be used, and legal limitations imposed by the <br />benelicialusc doctrine. <br /> <br />Golden is lcft to wonder whether the stall' opposition to boating diversions evident in the <br />mcmo is really 10 protect some public interest, or is instead evidence 0 f the inevitable tendency <br />of every government agency to extend and consolidate its area of authority? Recommendations <br />2.C. Ilnd 2.D in lhe July 13 memo, i.e" "expand the CWCB's authority" and "require the cwcn <br />to be a co-applicant," are revealing and strongly suggest the laLter. <br /> <br />Furthermore, S13 64 creates a serious COncern should the CWCB seek to expand its <br />authority into this area. Municipalities and other appropriators that initiate kayak course <br />appropriations arc subject to the full scmtiny ofthe Water Court. The CWCB is not. Thus, to <br />borrow a page from the staff l11emo, the CWCB could appropriate and control an entire waler <br /> <br />. <br /> <br />pll(l{)25 <br />