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kayak," and further explained that decreeing the minimum amount was necessary to <br />ensure that the flow of the entire stream would not be completely tied up by a RICD. <br />(Exhibit C, p. 3). In Colorado, the requirement that water be physically diverted from the <br />stream through a ditch or tunnel created inherent limits on the amount of water that could <br />be appropriated. Denver v. Northern Colo. Water Conservancy Dist., 276 P.2d 992, 998 <br />(Colo. 1954). Likewise, the limits imposed by the General Assembly in SB 216 protect <br />against appropriations of the entire stream. <br />Second, the Applicant's own evidence at the hearing on the RICD showed (and <br />the evidence at trial will show again) that there is clear and convincing evidence that 250 <br />c.f.s. is the minimum stream flow that provides a reasonable recreation experience. Mr. <br />Lacy, the Course designer and the Applicant's kayaking expert, stated in the prehearing <br />statement that "[t]he Whitewater Park will attract many boaters at 250 c.f.s. and above." <br />(Prehearing Statement, p. 1, attached hereto as Exiibit D). In Mr. Lacy's rebuttal report <br />to the CWCB, he reiterated that "[w]hile the design for the Whitewater Park will allow <br />for the creation of whitewater features at a flow of 250 c.f.s. sufficient to attract <br />experienced Whitewater kayakers, the course is designed to also function well at a range <br />of flows up to 2000 c.f.s....." (Rebuttal Statement, p. 2, attached hereto as Exhibit E). At <br />the CWCB hearing, Mr. Lacy again reaffirmed that 250 c.f.s. was sufficient for many <br />boaters, including experienced boaters. (Transcript, p. 38, attached hereto as Exhibit F). <br />Matt Tyler, a kayaker and the director of a recreational outings program at Western State <br />College, testified in support of the RICD, and stated that 250 c.f.s. "would be a good <br />kayaking experience." (Exhibit F, Transcript, p. 142). <br />9