Answer to Applicant's Closing Brief: Case No. 02CW38

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The Legislature explicitly stated that it was not deciding whether recreational in- channel uses could exist prior to the passage of SB 216, but rather, was reconfirming that if recreational in-channel uses were permitted under the law, they could only be decreed for the "minimum" amount necessary to provide for a reasonable recreational experience. (Rep. Lola Spradley, a sponsor of Senate Bi11216, at the House Agriculture, Livestock and Natural Resources Committee Hearing on May 7, 2001, attached hereto as Exhibit 4 DAWN??). The Legislature noted that this "is a change in water law" and that "recreational water rights are new water rights." (Transcript of hearing on SB 216, on May 8, 2001, attached hereto as Exhibit 2, pp. 2, 5). DAWn). The Legislature saw "a need for this legislation" as a result of "very large water claims" (Exhibit 2, p. 2), and to prevent "a run on the courthouse" for appropriations that "command the entire flow of the river and can be used by any entity to control all outstanding water". (Transcript of hearing on SB 216, on April 12, 2001, attached hereto as Exhibit 3, p. 1). Undoubtedly, the Legislature changed existing water law and created "new water rights" with SB 216. Nonetheless, the Applicant argues that as long as it meets the pre- SB 216 "beneficial use" standards, its subjective intent "necessarily determine[s]" the amount of water "in the same manner as was done for pre-SB 216 water rights". (CB, p. 12). The Legislature clearly established innovative water rights with unique limitations that were similar to the unique limitations of CWCB instream flows than pre-SB 216 water rights. The Legislature appointed the CWCB to make validly presumptive recommendations and findings in order to provide some objectivity into the process and to prevent appropriations of the entire river flow. (DAWN may 3, 2001 p. 1, emphasis added). 6