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

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that "the act of diversion and the act of applying the water diverted to a beneficial use, whether performed by the same or different persons, are both necessary to constitute an appropriation, so the continued existence of the appropriation depends on the continuance of both diversion and beneficial application." Bd. of County Comm'rs v. Rocky Mountain Water Co., 102 Colo. 351, 79 P.2d 373, 378 (1938). In 1965, the Supreme Court rejected a claim for water in a "natural stream to maintain a constant stream flow in the amount necessary to preserve fish, and to use such water in connection with retaining ponds for the propagation of fish for the benefit of the public." Colorado River Water Conservation Dist. v. Rocky Mountain Power Co. 406 P.2d 798, 799 (Colo. 1965). The Court held that "[t]here is no support in the law of this state for the proposition that a minimum flow of water may be `appropriated' in a natural stream for piscatorial purposes without diversion of any portion of the water `appropriated' from the natural course of the stream." Id. at 800. Thus, while a diversion of water into retaining ponds for fish culture may be an appropriation, allowing water to remain in the stream for piscatorial purposes was not. Id. The Court pointed out that "the right to the maintenance of the 'flow' of the stream is a riparian right and is completely inconsistent with the doctrine of prior appropriation." Id. citing Schodde v. Twin Falls Land and Water Co. 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686 (1912). In 1969, the legislature first provided that beneficial use included "impoundment of water for recreational purposes." § 148 -21 -3, C.R.S. (1969). At the same time, the legislature defined "diversion" as "removing water from its natural course or location, or controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device." Id.; § 37- 92- 103(7). The legislature also removed the term "storage water right," which was defined as "the right of impounding the water for future beneficial use," from section 148 -9 -1 (1963). While there is no legislative history to show why the legislature specified that water used for recreation must be impounded to be a beneficial use, the statute is clear that the legislature intended that recreation would be allowed only where the water was impounded in the natural stream. The inclusion of impoundment for recreation was likely an incorporation of the deleted "storage water right" that allowed water to be impounded in the 1963_ statutes. The language was also likely a legislative recognition of the multitude of cases, starting with Luthe holding that water may be appropriated by storage where there is some diversion into the reservoir or impoundment of the water for later diversion. § 37- 92- 103(4) (emphasis added). Without a requirement that the water had to be impounded, there would always have been the right to appropriate instream flows. The right to store water for later diversion for beneficial use is well established. Storage rights have also encompassed recreational or piscatorial uses, but those uses were always incidental to other beneficial use that require diversion. See e.g., Cache La Poudre Res. Co. v. Water Supply & Storage Co. 62 P. 420, 421 (Colo. 1900); Windsor Res. & Canal Co. v. Hoffman Mill Co 109 P. 422 (Colo. 3