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<br />. <br /> <br />. <br /> <br /> <br />. <br /> <br />S.B. 216 Legislative Statement <br /> <br /> <br />S.B. 216 is designed to ensure that decrees for recreational in-channel diversions, as <br />recognized by t1te Colorado Supreme Court in the City ofThomton v. City of Fort <br />Collins case, are integrated into t1te state prior appropriation system in a manner which <br />appropriately balances t1te need for water based recreational opportunities with t1te ability <br />of Colorado citizens to divert and store water under our compact entitlements for more <br />traditional consumptive use purposes, such as municipal, industrial and agricultural uses. <br />It does not bestow upon any individual or entity t1te authority to appropriate instrearn <br />flows or minimum lake levels. This remains the exclusive prerogative of the Colorado <br />Water Conservation Board. <br /> <br />The bill accomplishes its objectives by expressly providing for t1te following: <br /> <br />1. It specifically limits t1te category of entities that can obtain such decrees to those <br />public and quasi-public entities identified in the bill. <br /> <br />2. It defines "recreational in-channel diversions" such that only the "minimum" flow <br />necessary to support the recreational activity can be sought, with physical control <br />structures defining the upstrearn and downstrearn extent of the right. The waters are to <br />be controlled by the applicant in the identified reach, ""it'! applicant holding an <br />ownership interest in the lands abutting the reach. By way of exarnple, this would <br />mean that applicant could potentially obtain a right to t1te minimum arnount of water <br />necessary to float a kayak through a constructed course consisting of boat chutes <br />within the reach, such that there would exist a reasonable recreation experience, while <br />ensuring t1tat the entire flow of the reach is not dedicated to this right. It is anticipated <br />that under the bill t1te CWCB will establish further criteria governing such diversions, <br />such as additional guidance upon the appropriate time of day, season of use, length of <br />reach and minimum utilization demands, in order t1tat additional objective <br />benchmarks for judging the propriety of such appropriations are established. <br /> <br />3. The bill bestows upon the CWCB the obligation to review applications for <br />recreational in-channel diversions and to submit its recommendations thereon to the <br />water court prior to the entry of any decree therefor. It provides statutory criteria for <br />the CWCB to follow in fulfilling such responsibility. It requires t1tat the water court <br />not only consider the recommendations of the CWCB relative to t1te grant or denial of <br />t1te application, but that t1te court specifically take into account t1te criteria set forth in <br />section 37-92-102(5)(b), including as such may be subsequently supplemented by t1te <br />CWCB through rulemaking. <br /> <br />Finally, nothing in S.B. 216 is intended to create a water right which did not previously <br />exist by virtue of state Supreme Court interpretation of Colorado statue or to affect any <br />pending challenges to applications for rights of this nature to the extent such challenges <br />are found to be meritorious under existing law. Further, nothing herein is intended to <br />modify the rights of owners of real property, including the beds and banks of strearns, as <br />such may now exist. <br />