Laserfiche WebLink
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. The <br />Appellee argues that the statutory definitions of "diversion, "waste," "beneficial" <br />and "reasonableness" set forth in sections 37 -92- 103(4) & (7), C.R.S. (2000)1 constitute factual <br />findings. However, these are established legal concepts that had never before been applied in <br />the context of recreational instream uses. In City of Thornton v. City of Fort Collins, 830 <br />P.2d 915, 929 (Colo. 1992), the Court ruled on the definitions of "diversion" and "control" as <br />those terms were defined "within the meaning of the law," not as factual issues. The <br />Appellee also misrepresents the State's position with regard to recreational instream uses. <br />The State has acknowledged throughout these proceedings that such uses are, in fact, <br />economically beneficial to Appellee. However, until the passage of Senate Bill 01 -216 ( "SB <br />216 "), such uses were not a legal "beneficial use" recognized by the Legislature. <br />Contrary to the premise of Appellee's Answer Brief ( "AB "), the State has appealed <br />only one factual issue: whether the water court- erred in fmding that whitewater features <br />occur at 30 c.f.s. when the only evidence was the testimony of the whitewater course <br />designer that he was fairly certain that whitewater features occur at 200 c.f.s., but probably <br />