Reply to Response to Motion for Summary Judgment

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intend to prohibit recreational uses in the stream. There is a long - established tradition in Colorado that water can be appropriated by storage in the stream where there is some diversion into the reservoir or impoundment of the water for later diversion. Larimer Co. v. Luthe 8 Colo. 614, 9 P. 794 (1886); City and County of Denver v. Northern Colo. Water Conservancy Dist., 276 P.2d 992, (Colo. 1954) (on- channel reservoir); Aubert v. Town of Fruita 559 P.2d 232, (Colo. 1977)(on- channel reservoir and dam). The Legislature could not omit the "controlling water within the stream" language without also prohibiting on- channel reservoirs. This argument is also without merit. E. Diversion or impoundment is clearly a requirement under long - established Colorado water law. The Legislature intended that, except for the CWCB, appropriators were still subject to the long- standing diversion requirement or the requirement that the water be controlled in its natural course or location by storage (impoundment) in the streambed for later diversion. (Exhibit A); see also Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd. 594 P,.2d 570, 574 (Colo. 1979) (The Court emphasized that it was "not hereby causing any of the many opinions of this court, some of which are cited above, holding that a diversion is an essential element of the water appropriations involved in those cases. ")(emphasis added) While SB 212 did not apply to the Fort Collins appropriation, it does apply to the appropriations made for the Vail and Breckenridge courses. The CWCB is the only entity that can appropriate water flows in the stream (prior to the passage of Senate Bill 01 -216 which provides specific limitations and procedures for recreational in- channel diversions, such as allowing only the "minimum" amount of water). Because their applications predated the passage of SB 216, the Applicants are subject to the long- standing diversion requirement or the requirement that the water be controlled in its natural course or location by storage in the streambed for later diversion or impounded for recreation. (Exhibit A, written statement, pp. 1, 3; see footnote 4); see also Colorado Water Conservation Bd. 594 P.2d at 574). The appropriations for Vail and Breckenridge are exactly what the Legislature was trying to prevent -- appropriations of water for recreation use within the stream, without impoundment. SB 212 and the Legislature made it clear that such appropriations were impermissible, and this Court should honor the General Assembly's express intent to prevent such claims for water in the stream. II. CONCLUSION SB 212 was enacted subsequent to Fort Collins to prohibit an appropriation like that in Fort Collins by any person or entity other than the CWCB. Further, the Vail and Breckenridge "structures" are nothing like the Power Dam in Fort Collins. SB 212 and its accompanying legislative history clarify that the CWCB has the exclusive authority to appropriate water within the stream. All other appropriators must divert the water or impound the water for later diversion. Under SB 212, the appropriations made for the Vail and Breckenridge whitewater courses are impermissible instream flows.