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control. But placing rocks within an instream flow to create waves is simply not diversion, <br />capture, possession or control within the meaning of sections 37- 92- 103(7) and 37- 92- 305(9)(a) <br />or under this Court's holding in Fort Collins The water court's holding must be reversed. <br />III. In granting recreational instream flow appropriations, the water <br />courts provided conflicting definitions of "reasonableness" and <br />"waste," which inconsistency must be remedied by this Court. <br />A. This Court must set a duty of water for recreational <br />instream uses in order to ensure reasonableness and <br />maximum utilization and to prevent waste, <br />speculation, and monopolies. <br />Certain long - standing legal concepts and definitions developed by this Court (such as <br />"reasonableness" and "waste ") to limit the exercise of water rights in a clearly appropriative <br />system (i.e., physical diversion for mining and agriculture) do not translate easily into a <br />moderately riparian system (i.e., limited recreational instream uses). These terms have precise <br />and limited definitions for diversionary rights, but the terms have not been equally applied to the <br />instream recreational uses requested after Fort Collin This Court should provide uniform <br />definitions of such terms for future applications under SB 216, even if this Court properly holds <br />that recreational instream uses were not legal before SB 216. <br />In brief, this Court must set a duty of water for such uses. If the water court's opinion <br />stands without clarification, the duty of water for recreational boating will be whatever the <br />appropriator wants it to be, as long as it has flowed at that rate at any time, regardless of whether <br />it is reasonable. Without a reasonable limitation, there will be no mechanism for careful <br />management and use of water for recreation in Colorado. <br />16 <br />