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, <br />Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38) <br />Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy Distr-ict <br />Answer Brief of the Colorado River Water Conservation District <br />ruling, the "CWCB does not find that the amounts applied for either do or do not comport with the <br />102(6) factors." (R., v. III at 1102.) Instead, the CWCB's Findings of Fact assumed that the <br />application had been filed for a flow rate of 250 c.f.s. (R., v. I at 87-90.) The CWCB's decision to <br />ignore the intent of the appropriator and focus instead on its own determination of the flow rate for <br />a reasonable recreation experience cannot now justify re-analysis ofthe actual flow rates claimed by <br />the Upper Gunnison District. <br />Read in the light of the entire ruling, it is clear that the water court did not ignore the <br />limitations imposed by SB 216. Instead, the court properly applied the limitations of SB 216 to the <br />flow rate claimed by the Upper Gunnison District, and correctly refused to accept the State's <br />argument that the CWCB should be the sole arbiter of what constitutes the minimum flow for a <br />reasonable recreation experience. <br />2. Recreational use is an established beneficial use of water. <br />The State's argument that the CWCB is vested with the exclusive autharity to determine an <br />RICD flow rate is built on a very wobbly foundation. The State suggests that the criminal trespass <br />case of People v. Emmert, 595 P.2d 1025 (Colo. 1979), supports the notion that there is no <br />constitutional right to use water for recreational purposes. People u Emmert involved the right to <br />access private property for recreational purposes, and its holding cannot in good faith be extended <br />to the appropriation of water rights. The appropriation of water rights simply was not at issue in that <br />case, and the court mentioned water rights only for the specific purpose of distinguishing the access <br />and trespass issues from the appropriation of water rights. Id. at 1028. The State's reliance on <br />Page 7