Case No. 02SA226 Reply Brief March 2003

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inconsistent legal standards that encourage maximum desire instead of maximum utilization and "encourage those with vast monetary resources to monopolize, for personal profit rather than beneficial use, whatever unappropriated water remains." Colorado River Water Conservancy District V. Vidler Tunnel Water Co., 594 P.2d 566 (Colo. 1979). The absence of a diversion means there were no traditional physical limits on the amount of water that could be appropriated for recreational instream flows. Thus, all of the applicants in Golden, Eagle and Breckenridge requested whatever unappropriated water remained - virtually the entire flow of the stream.12 This appropriation clearly "vest[s] an absolute monopoly in a single individual," Schodde, 224 U.S. at 121, 32 S.Ct. at 473, which individual then may selectively subordinate that water right for a price (such as was done in Eagle on behalf of Vail Associates, Inc.). Despite the fact that recreational instream flows are non - consumptive, such unregulated water rights are open to extreme abuses. The lack of regulation of recreational instream flows would result in the unfair, speculative, greedy and monopolistic practices predicted during the SB 212 legislative hearings. (v. II, pp. 374, 392, 375-382). Similarly, because there was no preexisting law on what constitutes "waste" for recreational instream uses, the water courts in Division 1 (Golden and Division 5 (this case and Eagle) issued conflicting rulings. In Division 5, the water court held in this case that water would not be wasted at amounts between the maximum requested and the minimum 12Appellee is claiming water in amounts that are rarely available and represent the entire hydrograph for the Blue River for the months of April through October. (v. VIII, p. 134). The maximum amounts claimed have been available only four times in four years. (v. VIII, p. 135). 12