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The plain language of SB 216 (and the legislative intent) shows that Legislature <br />specifically granted the CWCB the authority to determine whether the water right sought <br />is the "minimum stream flow ... for a reasonable recreation experience" that would <br />promote maximum utilization and would not impair compact entitlements. Further, the <br />Legislature also specifically granted the CWCB the authority to recommend that the <br />application be granted, subject to conditions (i.e., that the application be granted with the <br />condition that the amount be limited to 250 c.f.s. because that is the minimum stream <br />flow necessary for a reasonable recreation experience). <br />Here, there is no dispute that the CWCB findings that, at 250 c.f.s., this <br />appropriation promoted maximum utilization and did not impair compact entitlements. <br />The Applicant's expert also testified that 250 c.f.s. was a sufficient amount to attract <br />experienced kayakers. Thus, the findings that 250 c.f.s was the minimum stream flow for <br />a reasonable recreation experience that would also promote maximum utilization and <br />would not impair compact entitlements should be upheld by this Court. <br />ARGUMENT <br />L THIS COURT SHOULD NOT RELY ON THE FORT COLLINS <br />CASE FOR SUPPORT BECAUSE THAT CASE IS NO LONGER <br />VALID. <br />The Applicant argues that this Court should uphold its application in its entirety <br />based upon the case of City of Thornton v. Cityof Fort Collins, 830 P.2d 915, 930 (Colo. <br />1992). This argument conflicts with the plain language of that case and the clear <br />legislative intent of both SB 212 and SB 216. In Fort Collins, the Court merely <br />recognized the obvious: that "[a] dam certainly qualifies as a structure or device" under <br />section 37-92-103(7), C.R.S. (2003), even though it is not specifically listed as a means <br />3