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

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the water court. The Court subsequently addressed the issue of the use of storage water used solely for recreation in Bd. of County Com'rs v. Crystal Creek, 14 P.3d 325, 339 -340 (Colo. 2000). The Court allowed a claim for recreational use solely because it was only one of the purposes of the reservoirs. The Court cited the case of Jicarilla Apache Tribe v. United States 657 F.2d 1126 (10th Cir.1981) for the proposition that reservoirs cannot be used solely for recreational purposes. Id. at 339. The Court has recognized the right under state law to allow recreational and piscatorial water rights only where the uses were incidental and, of course, where the water was impounded. See also Application for Water Rights, 929 P.2d 718 (Colo. 1996) (recreation and piscatorial incidental uses); Bijou Irr. Dist. v. Empire Club, 804 P.2d 175 (Colo. 1991)(recreational and piscatorial uses incidental, but denied nonetheless). In summary, "beneficial use" allows "the impoundment of water for recreational purposes, including fishery and wildlife" but does not allow water to be used for recreation purposes in the stream. The inclusion of the word "impoundment" for recreational uses must mean the exclusion of recreational uses for water that is not impounded. Clearly, the legislature meant impoundment when it added that word to "recreational purposes." Beeghly v. Mack 20 P.3d 610, 612 (Colo. 2001). If the Legislature had intended that water could be used for recreational purposes but not be impounded, it would not have included this limitation in the statute. Thus, applicants for recreational in- channel whitewater courses must show that the water is impounded. H. THE STATE NEVER ASKED THIS COURT TO RULE ON A QUESTION OF FACT A ND AGREES THAT ONLY AT TR IAL CAN THE APPLICANTS PROVE THAT THEY HAVE PUT THE WATER TO BENEFICIAL USE. The Applicants and the State are in agreement that the Applicant must prove at trial that their proposed use is beneficial. The Applicants argue that "what constitutes a `beneficial use' is always a fact specific determination, and inappropriate for disposition under C.R.C.P. 56(h) as an abstract matter of law." (Response, p. 2). The State is not requesting that this Court rule on whether the Applicant has put the water to beneficial use. The State has asked this Court, as clearly as possible, only to determine as a matter of law whether the Applicants must prove at trial that the water is impounded. Further, since all of the Applicants experts have testified during their depositions that the water is impounded, the Applicants have the opportunity to prove this factual issue at trial and succeed in getting their requested appropriations. III. CONCLUSION WHEREFORE, the State respectfully requests this Court to hold that the applicants for the Vail and Breckenridge whitewater courses must prove at trial that the n