Reply to Response to 56(h) Motion for Determination of Question of Law

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purpose for which the appropriation is lawfully made and, without limiting the generality of the foregoing, includes the impoundment of water for recreational purposes, including fishery or wildlife. For the benefit and enjoyment of present and future generations, "beneficial use" shall also include the appropriation by the state of Colorado in the manner prescribed by law of such minimum flows between specific points or levels for and on natural streams and lakes as are required to preserve the natural environment to a reasonable degree. § 37 -92- 103(4) (emphasis added). A. Statutory Interpretation The Applicants argue that because the General Assembly specified that the clause preceding the "impoundment' ' language is not limited, the Court should hold that the legislature intended not to limit the ensuing clause. This argument ignores established rules of statutory construction and established case law. As noted by the Applicants, the legislature expressly stated that the foregoing clause would not be limited. By stating that foregoing clause is not limited, that implies that the following clause is limited — otherwise those words mean nothing. Further, the foregoing clause only concerns the amount of water that is reasonable and does not concern the types of uses (as does the following clause). The legislature did not intend to limit the generality of the determination of what amount of water is reasonable and appropriate. However, the legislature clearly chose and applied the word "impoundment" to define when recreation uses are a beneficial use for a reason. If the legislature had wanted to allow recreation in the stream without impoundment, it could have omitted the word "impoundment" or added the term "without limiting the types of use" to the statute. The impoundment requirement of section 37 -92- 103(4) and the "controlling in the stream" language of section 37- 92- 103(7), C.R.S. (2001) show clearly that controlling water in the stream by impoundment is a beneficial use and an appropriate "diversion" of water. The Applicants would have this Court believe that there has never been an impoundment requirement to use water for recreational purposes. If the Applicants' argument is accepted, then this Court would be effectively ruling that in 1969 (when the legislature provided for impoundment for recreation), the legislature intended that water could be appropriated for recreational purposes instream without diversion or impoundment. The argument that control occurs where the water runs freely instream (without impoundment) disregards the language of the statute, the intent of the legislature and the long - standing case law established by the Colorado Supreme Court. B. Case Law Requires Water to be Impounded for Recreational Uses The history of water law in Colorado clearly shows that the legislature never intended to allow recreation to occur where there is no impoundment. In 1886, the Colorado Supreme Court first held that water can be appropriated by storage 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). In 1938, the Supreme Court held 7