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The water court limited the water rights to flows above 100 c.f.s., the point at which <br />whitewater features are formed, thus, the months of April, September and October were rejected <br />because there was no beneficial use. (v. VI, p. 1171). <br />SUMMARY OF THE ARGUMENT <br />It is indisputable that recreational instream flow uses are economically and <br />ecologically beneficial for this State. However, unless such uses are authorized by the <br />Legislature, they are not legal, regardless of whether they are beneficial, desired or non- <br />injurious. <br />Based upon extensive legislative history, there is no doubt that the Legislature <br />intended to prohibit decreed instream flow water rights for anyone other than the CWCB. <br />Based upon the case of Fort Collins 830 P.2d at 932, there is also no doubt that this Court <br />similarly prohibited decreed instream flow uses by anyone other than the CWCB. Thus, the <br />primary issue for this Court to determine is the difference, if any, between an instream flow <br />and the recreational instream uses granted here. Under the facts of this case, there literally is <br />no difference. This stream reach was an instream flow before the placement of rocks in the <br />stream, and the reach remains an instream flow after the placement of rocks. <br />There has been a gradual shift of Colorado water law to allow non - traditional uses, <br />but the Legislature and this Court have carefully considered and measured each such change <br />to ensure fairness and maximum utilization. The Legislature and this Court have consistently <br />required a physical diversion in order to ensure that the State does not become a riparian state <br />and to prevent the taking of the whole flow of the stream for speculative purposes. <br />3 <br />