56 (H) Motion for Determination of Question of Law

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a whitewater course located in Vail. The course is located within the channel of Gore Creek and extends for approximately 300 feet. Construction of the course consisted of the creation of three (3) rock structures. Amounts claimed for the Vail whitewater course include 12.6 c.f.s. absolute for the month of November in addition to the conditional amounts set forth in the chart below. The Town of Breckenridge has also applied for approval of a decree for recreational water rights to be used in a whitewater course located in the Town of Breckenridge in Case No. OOCW281. The Breckenridge course when completed will be approximately 1800 feet in length and will occupy the channel of the Blue River. There will be approximately 15 man -made structures to create the whitewater features of this course. The conditional water rights requested in this application are set forth in the chart below. These two whitewater courses hereinafter referred to as Vail and Breckenridge, were opposed by the State on Feb. 27, 2001. Vail Course Breckenridge Course Mar Apr May Jun Jul Aug Sep Oct Nov Conditional c.f.s. 54 226 400 400 400 218 67 48 31 Breckenridge Course STATEMENT OF THE ISSUE PRESENTED FOR REVIEW Whether the applicants for the Vail and Breckenridge whitewater courses must prove that the water claimed for recreational uses has been impounded under section 37 -92- 103(4), C.R.S. (2001). Under section 37 -92- 103(4), "beneficial use" includes "the impoundment of water for recreational purposes, including fishery and wildlife." (emphasis added). The inclusion of the word "impoundment" for recreational uses must mean the exclusion of recreational uses for water that is not impounded. It may be presumed that the legislature meant what it clearly stated in the statute. Beeghly v. Mack 20 P.3d 610, 612 (Colo. 2001). The court must construe a statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others. Lunsford v. Apr May Jun Jul Aug Sep Oct Nov Conditional c.fs. 39 281 524 343 205 82 51 27 STATEMENT OF THE ISSUE PRESENTED FOR REVIEW Whether the applicants for the Vail and Breckenridge whitewater courses must prove that the water claimed for recreational uses has been impounded under section 37 -92- 103(4), C.R.S. (2001). Under section 37 -92- 103(4), "beneficial use" includes "the impoundment of water for recreational purposes, including fishery and wildlife." (emphasis added). The inclusion of the word "impoundment" for recreational uses must mean the exclusion of recreational uses for water that is not impounded. It may be presumed that the legislature meant what it clearly stated in the statute. Beeghly v. Mack 20 P.3d 610, 612 (Colo. 2001). The court must construe a statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others. Lunsford v.