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passed Senate Bill 87 -212 ( "SB 212 ") 7 to prevent recreational instream flows -(after Fort <br />Collins sought a minimal water right), and again in 2001 when it passed SB 2168 (after <br />Golden, Vail and Breckenridge sought water rights for all the available water) to limit <br />recreational instream flows to the minimum amount necessary to provide a reasonable <br />recreational experience. §§ 37 -92- 103(10.3) & 37- 92- 102(6)(b)(V), C.R.S.- (2002). Appellee <br />argues that under SB 216, it would still receive the maximum amount of water available <br />because in the applications made under SB 216, the CWCB recommended the "maximum <br />amounts that were sought." (AB, p. 21, fn 6; p. 24). This is false. In Case 02CW38 <br />( "Gunnison "), the applicant sought a maximum of 1500 c.f.s. The CWCB found that the <br />minimum amount necessary for a reasonable recreation experience was 250 c.f.s. (Exhibit 3). <br />It is the duty of the Legislature, not the water courts, to determine whether and under <br />what conditions Colorado will allow recreational instream flow water rights. Emmert, 597 <br />P.2d at 1029. The water courts' decrees in Golden, Breckenridge and here usurp the <br />Legislature's authority. With no direction from this Court or the Legislature, the water courts <br />failed to provide decrees with uniform and consistent provisions. This decree must be reversed <br />because it is contrary to the law existing at the time of the application. Thereafter, the Appellee <br />may reapply, with the same priority date, under SB 216. <br />7 At the legislative hearing on SB 212, the record shows a concern that without limits on use, <br />entities would try to "command the flow of streams for their own aims, without proceeding <br />through the administrative and statutory provisions for an instream flow appropriation by the <br />Water Conservation Board." (v. II, pp. 374, 392). The Legislature also predicted <br />"speculation" caused by the exact type of bank -to -bank appropriations claimed here. (v. II, <br />pp. 392, 375 -382). <br />8Transcripts of hearings on SB 216, Exhibit 2, p. 2; Exhibit 3, p. 1. <br />5 <br />