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The Water Court erred in holding that recreational instream uses were not subject to any <br />limitations beyond those allocated to traditional diversionary water rights. This Court should <br />hold that under the plain language and the legislative history of SB 216, the "minimum stream <br />flow" requirement in SB 216 has a meaning separate and distinct from the traditional <br />appropriation requirements, resulting in limits on RICD claims to a minimum amount of water. <br />III. THE LEGISLATURE GRANTED THE CWCB THE <br />AUTHORITY TO DETERMINE WHETHER THE <br />APPLICATION IS FOR THE MINIMUM STREAM FLOW FOR <br />A REASONABLE RECREATION EXPERIENCE. <br />By refusing to interpret SB 216 to "preclude an Applicant from determining precisely the <br />size and scope" of a recreational instream water right, the Water Court effectively held that it <br />would be unconstitutional for either the Legislature or the CWCB to limit the size or scope of a <br />recreational instream flow request. (Exhibit A, Order, p. 19). However, this Court has already <br />determined that the Legislature has the authority to determine whether and under what conditions <br />instream uses are to be granted, (see Argument I above).9 This Court should also hold that the <br />Legislature properly granted the CWCB the authority to make a presumptively valid <br />determination as to the minimum stream flow necessary for a reasonable recreation experience. <br />A. The plain language shows that the CWCB has the <br />authority to make a presumptively valid <br />determination of the minimum stream flow necessary <br />for a reasonable recreation experience. <br />The plain language of SB 216 shows that the CWCB has the authority to make a <br />presumptively valid determination as to whether the RICD is for a"minimum stream flow." The <br />introduction to section 37-92-103 requires this Court to apply the definition of "recreational in- <br />9 See e•g•, Emmert, 597 P.2d 1025; CWCB, 594 P.2d 570. <br />15