Reply to Response to Motion for Summary Judgment

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A. SB 212 is not irrelevant to the appropriation at issue. The Applicants (the city of Breckenridge and the Eagle River Water and Sanitation District, on behalf of the city of Vail) argue that SB 212 is irrelevant because the appropriations at issue here are not instream flows. The "structures" are boulders in the stream that deflect water. In all instream flows there are some boulders in the stream that deflect water, but those structures do not constitute control. In the Vail whitewater course, the "highly engineered and expensive diversion structures" are boulders placed in the stream without grout. In the Breckenridge whitewater course, the "highly engineered and expensive diversion structures" are boulders placed in the stream with grout. The CWCB's instream flows often contain boulders rearranged by nature or humans, but still constitute a natural environment where the water flows freely as it does in Vail and Breckenridge. Further, since the CWCB does have an instream flow in the reach of the Vail course, the water is flowing through a natural environment without control or diversion "structures." On both the Vail and Breckenridge courses, the water appears to be flowing freely through a natural environment. In sum, because the water "appropriated" in both courses remains in its natural course in a natural environment and appear to be instream flows, the issue whether the courses are instream flows is very relevant to this case. B. SB 212 was not applicable to the Fort Collins case because Fort Collins' appropriation date was 1986 and the legislation went into effect in 1987. The Applicants incorrectly argue that SB 212 applied to the Fort Collins application. As noted by the Court, "the 1988 amendments relate[d] back to the 1986 application." Fort Collins 830 P.2d at 923. If the 1988 amendments related back, then the law in effect in 1986 applied. Clearly SB 212, enacted in 1987, could not have been applied to a 1986 appropriation. If the Court had intended to apply a statute enacted after the appropriation date, it would have analyzed the constitutional implications of such retroactive application. "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly." Art. II, Sec. 11, Colo. Const. As noted by the Applicants, the Court did cite the statute, but it did not apply to the 1986 appropriation. Further, the legislative history of SB 212 was not considered by the Court or presented by the parties. See Response, p. 3, Appendices 1A, 1B, 1C, Fort Collins 830 P.2d at 930. Because the applicant, Fort Collins, had a 1986 appropriation date, there was no need for the Court to review the legislative history of SB 212. Further, because the Fort Collins Power Dam was a clear impoundment, there really was no need to analyze the amendments to the instream flow statute since impounding water in an- channel dam had never been deemed an instream flow. These applications extend the limits of Fort Collins and fails to meet the requirements in Fort Collins that the water be "diverted , stored, or otherwise