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The Legislature specifically defined "`recreational in-channel diversion' such that <br />only the `minimum' flow necessary to support the recreational activity can be sought." <br />(Exhibit J, p. 1). The "minimum" flow "would mean that the applicant could potentially <br />obtain a right to the minimum amount of water necessary to float a kayak". (Exhibit J, p. 1). <br />Finally, as demonstrated above, it is within the authority of the Legislature to <br />establish and limit water uses, not the appropriators (as CRCD argues, Brief, p. 8). If in- <br />channel uses were only limited by the Appellee's desire and the Legislature had imposed no <br />limitations on the "size and scope" of in-channel uses, then improper motives would drive <br />the apportionment of Colorado's most valuable and scarce resource. <br />Here, the stated intent of the Appellee was to "protect Upper Gunnison water <br />resources from out-of-basin diversion." (v. IV, pp. 136). However, preventing out of basin <br />diversions is not a valid beneficial use in Colorado. These types of subjective and unfair <br />motives result in exactly the type of "misuse" the legislators feared and tried to prevent by <br />limiting in-channel uses to a minimum. (See Exhibit J, SB 216 Legislative Statement, <br />Exhibit G, pp. 3-4, 10; Exhibit H, p. 1; see also Exhibit I, p. 18). <br />The Water Court erred by refusing to "second guess the Applicant in its requested <br />amount." (Order, p. 19). This Court should recognize that the plain language and the <br />legislative history of SB 216 show that the Legislature provided limits on in-channel uses <br />16 The Appellee relies on the testimony of lay persons, instead of the legislators, to determine <br />"legislative intent" (except for one citation to Senator Entz's concerns for the "mischief' the <br />General Assembly feared from in-channel recreational uses). (Appellee's Brief, pp. 11-13). <br />11