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Appellants, the Colorado Water Conservation Board ( "the CWCB ") and the State <br />Engineer and Division Engineer for Water Division 5 (collectively "State "), through the <br />Attorney General for the State of Colorado and the undersigned Assistant Attorney General, <br />set forth the following Reply Brief: <br />INTRODUCTION <br />The Appellee consistently confuses factual and legal issues in its Answer Brief. <br />( "AB "). The Appellee argues that the statutory definitions of "diversion," "control," <br />"waste," "beneficial" and "reasonableness" set forth in sections 37 -92- 103(4) & (7), C.R.S. <br />(2000)1 constitute factual findings. However, these are established legal concepts that had <br />never before been applied in the context of recreational instream uses. In City of Thornton v. <br />City of Fort Collins, 830 P.2d 915, 929 (Colo. 1992), the Court ruled on the definitions of <br />"diversion" and "control" as those terms were defined "within the meaning of the law," not <br />as factual issues. Contrary to the premise of Appellee's Answer Brief, the State has appealed <br />only legal issues. <br />The Appellee also misrepresents the State's position with regard to recreational <br />instream uses. The State has acknowledged throughout these proceedings that such uses are, <br />in fact, economically beneficial to Appellee. However, until the passage of Senate, Bill 01- <br />216 ( "SB 216 "), such uses were not a legal "beneficial use" recognized by the Legislature. <br />1 The 2000 statute is cited because subsequent legislation changed the statute. <br />