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This Court should uphold the Legislature's authority to allow, but limit, recreational <br />instream uses to a minimtun stream flow. This Court should also hold that the CWCB has the <br />autharity to make a presumptively valid finding that the application should be granted, with the <br />condition that it be limited to 250 c.f.s., because the record shows that 250 c.f.s. is the minimum <br />stream flow for a reasonable recreation experience, and the amount that would undisputedly <br />promote maximum utilization and not impair compact entitlements. Finally, this Court should <br />hold that such findings must be upheld unless proven erroneous by clear and convincing <br />evidence. <br />ARGUMENT <br />1. THE WATER COURT ERRED IN HOLDING THAT <br />LIMITATIONS ON TAE SIZE OF RECREATIONAL <br />INSTREAM WATER RIGHTS INFRINGE ON THE <br />CONSTITUTION. <br />The Water Court held that it would be unconstitutional "[t]o preclude an Applicant from <br />determining precisely the size and scope" of any RICD. (Exhibit A, p. 19). With this holding, <br />the Water Court, in effect, created a constitutional right to appropriate water for recreational uses <br />that cannot be limited by the Legislature. This Court should overturn the Water Court's holding <br />that there is a constitutional right to appropriate water for recreational instream uses that <br />abrogates the legislative limitations on the amount of water that can be claimed. <br />A. There is No Constitutional Right to Instream Uses in <br />Colorado. <br />Contrary to the Water Court's conclusion (Exhibit A, p. 17), neither Article XVI, section <br />5 nor Article XVI, section 6, of the Colorado Constitution provides a constitutional right to <br />6