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0 <br /> (g) The proposed use of the water as an instream flow in the Yampa <br /> River below Steamboat Lake does not constitute a diversion of water, and <br /> therefore such releases for such purposes constitute wasting and useless <br /> discharge and running away of water, contrary to C.R.S. §37-84-108. <br /> (h) Water released from storage under a water storage decree which is <br /> not then diverted to a beneficial use is water abandoned to the stream <br /> system, no longer under the control of the owner of the decreed water, <br /> or constitutes return flow, and available for appropriation. To the <br /> extent applicant has, directly or indirectly, released water stored <br /> under the decree in Case No. 90CW01 below Steamboat Lake, such water has <br /> been legally abandoned, and the Court should so decree in this case. <br /> Alternatively, to the extent applicant has, directly or indirectly, <br /> released water stored under the decree in Case No. 90CW01 below <br /> Steamboat Lake, it never exercised control or dominion over such water <br /> and such water constitutes in its entirety return flows, subject to <br /> appropriation within the Elk River and above the reach of the Yampa <br /> River sought as a location of use in this proceeding; therefore, the <br /> granting of a decree in this case for change of use of any water decreed <br /> under Case. No. 90CW01 at such downstream reach would be a diminution of <br /> return flow to the detriment of other appropriators prohibited by C.R.S. <br /> 537-92-305(4) (b) . <br /> (i) Release of the water decreed in Case No. 90CW01 from Steamboat <br /> Lake for the purposes and uses requested in the application will also <br /> injure Objector and the class of beneficiaries of the decreed water, <br /> being Colorado citizens and public users of Steamboat Lake State Park <br /> and Steamboat Lake itself, managed by the applicant, in that such <br /> release will result in lowering of water levels and exposure of <br /> mudflats, creating a detriment to the recreational values of Steamboat <br /> Lake and the recreation uses of the decreed water. <br /> (j) The waters decreed in Case No. 90CW01 were not and have not been <br /> appropriated for any use other than for recreation and fishery <br /> exclusively while stored within Steamboat Lake. All other uses decreed <br /> in Case No. 90CW01, including irrigation, municipal, and industrial, <br /> including use for irrigation of land below Steamboat Lake on the Elk and <br /> Yampa drainages, were decreed without any proof or evidence of any <br /> actual diversion, appropriation, or beneficial uses, or intent to <br /> appropriate, or authority to appropriate, and are subject to <br /> modification in this proceeding, or have been abandoned. <br /> (k) Leasing of the water decreed in Case No. 90CW01 to the Federal <br /> Fish and Wildlife Service ("Service") for their control as instream flow <br /> in the designated reach of the Yampa River constitutes federal action <br /> necessitating compliance with NEPA. Such compliance has not been <br /> accomplished, no Environmental Impact Statement or Environmental <br /> Assessment has been made with respect to the proposed use of this water <br /> right by the Service, and no decree should enter for such speculative <br /> use until a lease is entered into after compliance by the Service with <br /> NEPA. <br /> (1) The change of use and location of use sought in this action is <br /> outside of the scope and purpose of applicant as an agency of the State <br /> -3- <br />