Reply to Response to Motion for Summary Judgment

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captured, possessed and controlled" and put to beneficial use. Id. at 926. This case also violates the express intent of the Legislature to prevent an appropriation of the entire stream (Motion, Exhibit A, pp. 34 -35, 38), and the Fort Collins limit on boat chutes to those which "control and direct river water only at low flows." Id. at 931. The Applicants characterize the Supreme Court holding that "a CWCB minimum instream flow `usually signifies the complete absence of a structure or device' on the stream reach" as "binding precedent" in this matter. (Response, pp. 3- 4). The State agrees that a CWCB minimum instream flow does not have a structure or device on the stream reach. The presence of boulders in the stream that create eddies and waves is no different than the presence of random boulders in the streams where an instream flow has been appropriated. The presence of boulders simply does not constitute a structure or device like the Power Dam that "is a concrete dam across the Poudre River which includes a boat chute and fish ladder." Decree, Case No. 86CW371, Response, Exhibit 2). The Applicants state that the "Supreme Court's holding in Ft. Collins with respect to SB 212 was an affirmation of the water court's decision on that same issue." This is completely wrong. The Supreme Court absolutely did not state that the SB 212 "did not change the law in any way and did not add any new law" or that it had "no relationship to the case." (Response, p.:4). The Supreme Court only cited. the new statute and did not analyze or comment on the changes, or the history, - purpose or effect of its changes.. The Applicants' statements to this Court in this regard are misleading. C. The issue of whether recreation is one of the purposes for which an entity may appropriate water for flows in a stream channel is clearly unresolved. The statute is ambiguous and needs clarification. In addition to clarifying that the CWCB is the only entity that can appropriate water in a stream without impoundment or diversion, SB 212 also added language prohibiting the use of water for instream flows in a stream channel between specific points "for any purpose whatsoever." 1987 Sess. Laws, 1305 -1306, ch. 269, § 2. Unless the Applicants agree with the State that this language means that an entity cannot appropriate water in the stream for recreation uses, the Applicant cannot possibly claim that this language is unambiguous. The Applicants also call 'the State's citations to the legislative history "selective and self - serving." (Response, p. 4). Notable, however, is the inability of the Applicants to cite any language from the legislative history which indicates that SB 212 was not designed to prevent the exact type of appropriation that they are now seeking. Further, the State admits it was selective and could have added numerous pages of further cites to support its position. For example, it is clear the Legislature did consider and reject the pleas of recreational users who opposed SB 212 because "it poses a serious threat to River Water Outfitters throughout the state," and could