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http://www.adventuresports.com/croa/croa—report.htm (attached hereto as Appendix G). Given <br />that what qualifies as a beneficial use is fact - based, this Court should resist the State's and State <br />Amid's call to close the door to new non - consumptive and/or in- channel uses. <br />In its seminal decision involving in- channel recreational rights, this Court upheld a <br />decree granting the City of Ft. Collins a water right for recreational use based on one in- channel <br />structure and for fishery use based on another. City of Thornton v. City of Ft. Collins, 830 P.2d <br />915 (Colo. 1992).4 The legislature reaffirmed last year in Senate Bill 01 -216 (S.B. 216) that in- <br />channel diversions for recreational purposes constitute a beneficial use of water in Colorado, at <br />least for local governments. Ch. 305, 2001 Colo. Sess. Laws 1187. Thus, since both this Court <br />and the legislature have seen fit to recognize recreational in- channel uses, it is no longer credible <br />to argue that such uses somehow do not fit within Colorado's policy of promoting the maximum <br />utilization of its scarce water resource. <br />Even in the more extreme situation presented by Colorado's instream flow program, this <br />Court has refused the invitation to find non - consumptive in- channel beneficial uses to be of a <br />secondary nature in our system of prior appropriation. In its decision upholding the state's <br />instream flow program, the Court rejected objectors' argument that, "later junior appropriators <br />may have their rights adjudicated, which rights will be superior to" the instream flow rights. <br />Colorado River Water Conservation Distr. v. Colorado Water Conservation Bd., 197 Colo. at <br />476 -77, 594 P.2d at 575 (1979). The Court went on to approve of language from the trial judge <br />4 In that case, the Court declined to rule that such decrees would impede the Colorado Water <br />Conservation Board's mandate of "securing the greatest utilization of the waters of the state," as <br />one party had argued. Memorandum Brief of Northern Colorado Water Conservancy District in <br />Support of Affirmance of Water Court Decision, p. 6, Docket # 90SA514 (1991) (Northern's Ft. <br />Collins Brief, attached hereto as Appendix H). <br />14 <br />