Case No. 02SA224 Reply Brief March 2003

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not at any number below 200 c.f.s. (v. )U, p. 53). Thus, a finding that whitewater features appear at 30 c.f.s. has no support in the record, and must be reversed. Vento v. Colorado Nat. Bank- Pueblo, 907 P.2d 642 (Colo.App. 1995). Contrary to Appellee's repeated assertions, the State is not opposed to recreational instream uses,2 but rather seeks a determination.that it is the duty of the Legislature to determine whether and under what conditions Colorado will allow recreational instream flow water rights. "If the increasing demand for recreational space on the waters of this state is to be accommodated, the legislative process is the proper method to achieve this end." People v. Emmert, 597 P.2d 1025, 1029 (Colo. 1979). Finally, the State agrees with the Appellee that the water right at issue: 1) is a valuable asset that provides economic benefit to the Appellee, in large part because of its ability to subordinate that water right to snowmaking and municipal uses;3 2) should cause no injury to senior water users if administered properly; 3) probably benefits the environment; and 4) in part, provided the impetus for the Legislature to incorporate recreational instream uses into a traditional diversionary system. However, these facts do not provide the legal basis for a recreational - instream flow water right.— only the Legislature can establish the basis for a recreational instream flow water right. Thus, the only issue is whether the Legislature had enacted legislation specifically allowing Water rights for 1 The 2000 statute is cited because subsequent legislation changed the statute. 2In fact, members of the CWCB sought to introduce the legislation recognizing recreational instream flows and supported the final legislation as passed. (Exhibit 2, pp 2 -6). 3The Appellee has obtained a monopoly on this water that allows it to use these recreational water rights for "future municipal and snowmaking rights." (v. X, p. 93, 90 -92). 2