Case No. 02SA224 Reply Brief March 2003

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flows. (Transcript of hearing on SB 216 on April 12, 2001, attached hereto as Exhibit 2, p. 1, Senator Entz; Exhibit 1, p. 10, Representative Young). Recreational instream flows were "new water rights," and thus, "there [were] no standards and procedures" for water courts to follow for recreational instream flows because such rights did not exist until "a need for this legislation [came] as a result of certain local districts filing very large claims..." (Exhibit 1, pp. 1 -3). Therefore, some limits had to be imposed to prevent appropriations that "command the entire flow of the river and can be used by any entity to control all outstanding water...." (Exhibit 2, p. 1). With no law authorizing such uses, there were no legislative or court- imposed standards on how these valuable water rights were to be appropriated. With no limits, the appropriation of water by "dropping a single boulder in a river" is neither "ridiculous" nor a "far -flung scenario" as Appellee claims, but rather, the natural extension of an unconstrained system for instream water appropriations.6 (AB, p. 22). The Legislature specifically acknowledged that recreational instream flows would change the prior appropriation system by allowing claims for "putting some boulders into the stream" for boating. (Exhibit 1, p. 1). As a result of the absence of standards applicable to this type of appropriation, the water courts have provided inconsistent legal rulings and have granted unregulated monopolies on entire water basins. This result was exactly what the Legislature feared in 1987 when it 6Appellee argues that because SB 216 will prevent such a "parade of horribles," this unlimited water right should be upheld. (AB, p. 22). While it is true that SB 216 will prevent further unregulated abuses, that should not be the basis for this Court to uphold Appellee's unregulated monopoly of the water basin. rd