concurring in part and dissenting in part.
~€49 I join parts I, III, and IV of the majority's opinion affirming the water court's judgment to the extent that it resolved the parties' disputes over the meaning and effect of their agreements, quieted title to the priorities in this case, and ruled on various procedural issues. I also agree that the defendant-appellee is entitled to attorney fees incurred in vindicating its rights under the parties' release agreement in this appeal.
*4571 50 I write separately, however, because I disagree with the majority's conclusion that aesthetic, recreational, and piscatorial uses are categorically non-beneficial uses of water. Because I believe that such uses qualify as beneficial uses under Colorado water law, and because the record supports the water court's finding that Roaring Fork Club, L.L.C. ("the Club") needed the amount of water it claimed, I would affirm the judgment of the water court in this regard as well. Accordingly, I respectfully concur in part and dissent in part.
€51 The majority initially questions whether aesthetic, recreational, and piscatorial uses can even rightly be described as "uses"-much less beneficial ones. Maj. op. 1121-22. The majority supposes that these pursuits are "entirely passive," in that one merely "derives enjoyment from the water in its diverted state." Id. at 121. Yet it does not fully explain what distinguishes an "active use" from a passive use. See id. Given its example of the extraction of water during coalbed methane production, see id. (citing Vance v. Wolfe, 205 P.Bd 1165, 1169 (Colo. 2009)), and the fact that the Club sought to use the water in the RFC Ditch (also referred to as "Spring Creek") partly for recreational fishing, I assume that the majority's distinction lies in applying water to some physical process or to produce some physical good, as opposed to obtaining enjoyment from the diverted water directly. Yet neither the Colorado Constitution nor the statutory definition of "beneficial use" draws such a distinction.
52 Although article XVI, section 6 of the Colorado Constitution prioritizes domestic uses over all other uses, and agricultural purposes over manufacturing, it does not limit appropriations to these uses. See Santa Fe Troil Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53 n.9 (Colo.1999) (noting that the meaning of "beneficial use" "tracks legislative enactments, court decisions, and, principally, the acts of appropriators who control water to their purposes" (emphasis added)); accord maj. op. 113. Likewise, although section 37-92-108(4), C.R.S. (2014), provides several examples of beneficial uses, it expressly states that these examples are not intended to limit the meaning of "beneficial use."1 Thus, both the constitution and the statutory definition leave the term open to expansion beyond tradition- ° al uses of water.
1 53 In fact, one of the examples of beneficial use enumerated in the statutory definition suggests that the legislature intended the definition to encompass the types of uses at issue in this case. Section 87-92-103(4)(a) identifies as a beneficial use the storage of water for "recreational, fishery, or wildlife purposes," and the fishery purposes referenced in the statute plainly include recreational fishing. See May v. United States, 756 P.2d 362, 370-71 & n.11 (Colo.1988), as modified on denial of reh'g (June 6, 1988); Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, 758 P.2d 164, 173 (Colo.1988). I see no meaningful distinction between recreational fishing in a reservoir and recreational fishing in a flow-through diversion. As amici point out, the need to clarify that recreational, fishery, or wildlife purposes can support a storage right may have arisen simply because of the rule that storage of water, by itself, is not sufficient to perfect an appropriation, see, eg., Upper Yampa Water Conservancy Dist. v. Wolfe, 255 P.3d 1108, 1111 (Colo.2011). This likely explains why the legislature would identify *458the storage of water for recreational, fishery, or wildlife purposes as a "beneficial use" without explicitly recognizing the right to a flow-through diversion for the same purposes. See § 37-92-103(4)(a).
T 54 Indeed, this court has previously recognized that recreational, fishery, or wildlife purposes extend to flowing water. See City of Thornton v. City of Fort Collins, 830 P.2d 915, 930-31 (Colo.1992) (acknowledging "recreational, piscatorial, fishery, and wildlife purposes" as beneficial uses in holding that water may be appropriated by removing it from its natural course toward another course).2 And, long before City of Fort Collins, this court approved of decrees for flow-through rights for piscatorial purposes in Faden v. Hubbell, 93 Colo. 358, 28 P.2d 247, 248, 250-51 (1933); The majority suggests that piscatorial uses are limited to fish production. Maj. op. 124. That may have been the case in Faden, but this court has since expressly recognized recreational fishing as a beneficial use of flowing water-even if the private appropriation of water for this pur- . pose in a stream channel is no longer permissible. See City of Fort Collins, 830 P.2d at 919, 980; see also § 37-92-103(4)(b).
155 The line the majority seeks to draw between "active," productive uses and "passive," recreational uses, maj. op. 1 21, is not only unmoored from the constitution, the statutes, and this court's precedent but is also conceptually untenable. The only authority the majority cites for its understanding of the term "use" is the dictionary definition of the verb "to use," meaning "to put into action or service." See id. (citing Webster's Third New International Dictionary 2528 (2002)). Yet the noun "use"-as in the phrase "beneficial use"-means "a particular service or end." Webster's Third New International Dictionary 2523 (2002). Reere-ational uses such as boating, swimming, and fishing, as well as simply enjoying the view, are all "ends" in and of themselves. Although such uses do not result in any measurable product (such as crops, or methane, or hydroelectric power), they do create recreational value-in this case reflected by Club guests' willingness to pay for the amenity of Spring Creek and, conversely, their complaints when its flow was low. Hypothetically, guests could derive similar pleasure from a light show powered by a small-scale hydroelectric plant, or a flower garden or golf course irrigated with water diverted from the Roaring Fork River, and such applications of water would undoubtedly qualify as "beneficial uses." Cf., e.g., Pub. Serv. Co. of Colo. v. FERC, 754 F.2d 1555, 1558 (10th Cir.1985) (describing a hydroelectric plant with a direct-flow right of 1250 cubic feet per second ("cfs"); Ackerman v. City of Walsenburg, 171 Colo. 304, 467 P.2d 267, 272 (1970) (referencing direct-flow rights for irrigation of lawns and shrubs). I see no reason to distinguish between "active" uses of water that indirectly delight and "passive" uses that do so directly.
156 The majority next opines that the Club's proposed aesthetic, recreational, and piscatorial uses cannot be "beneficial" because they have no "objective limits, beyond which it becomes unreasonable, inappropriate, inefficient, or wasteful." Maj. op. 1122-23. Yet these types of uses can be- and are statutorily required to be-limited to amounts "reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." § 37-92-103(4). Water courts are well equipped to determine what amount of water is reasonable for recreational uses. See Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 602-08 (Colo.2005) (holding that the recreational in-channel diversion ("RICD") statute requires water courts to determine the amount of water necessary for a "reasonable recreation experience"). As with RICDs, expert testimony can establish how much water is necessary for a given aesthetic, recreational, or piscatorial use. CL id. at 608. For example, amici have furnished reports prepared by consulting firms quantifying the precise *459amount of water needed to sustain habitat for fish and other aquatic life in various . water features.
157 The value that Spring Creek creates, as well as the ability to determine the amount of water needed to achieve its purposes, suggests that aesthetic, recreational, and piscatorial uses satisfy the "beneficial use" requirement. So, is such a flow-through feature "tantamount to a forbidden riparian right," as the majority asserts? Maj. op. 25. I think not.
158 The majority cites Colorado River Water Conservation District v. Rocky Mountain Power Co., 158 Colo. 331, 406 P.2d 798, 800 (1965), for the proposition that " 'the right to the maintenance of the "flow" of the stream is a riparian right and is completely inconsistent with the doctrine of prior appropriation.'" Maj. op. 112. Yet, in that case, this court emphasized that "the first essential of an appropriation is the actual diversion of the water' from a natural stream. Rocky Mountain Power Co., 406 P.2d at 800 (emphasis in original) (internal quotation marks omitted). The Club proposes to divert water from the stream for its flow-through feature; it does not request a right to a specific flow rate in the natural stream. Far from seeking "a right to the flow of water in its natural channel upon and over [its] lands," Coffin v. Left Hand Ditch Co., 6 Colo. 443, 447 (1882), the Club seeks to remove water from the stream and apply it to arguably beneficial uses on its property, thereby increasing the property's value. This is the paradigmatic function of our state's system of prior appropriation. See id. at 446.
159 Further, permitting such a right would not "substantially undermine the intent evident in the legislature's instream flow and RICD provisions," maj. op. 125. One of the problems the legislature sought to address in limiting the availability of RICDs was the concern that private parties could tie up excessive amounts of water in the stream, with little financial outlay. See Upper CGun-nison, 109 P.8d at 600-01. Diverting water for purposes of a flow-through right, by contrast, requires an appropriator to invest in a diversion structure. Thus, despite its concerns about the notion of instream appropriations, the legislature did not abrogate this court's holding in City of Fort Collins that an appropriator may divert water from a natural stream for beneficial uses including recreational, piscatorial, and wildlife uses. Compare City of Fort Collins, 830 P.2d at 920, 930-31 (holding that Fort Collins's "Nature Dam," which diverted water from the Poudre River into its historic channel, past a nature center, "removes ... water from its natural course and puts that water to a beneficial use"), with § 87-92-103(7) (defining "[dliversion" as "removing water from its natural course or location" or "controlling water in its natural course or location" and limiting only the latter type of diversion to governmental entities). If the legislature concludes that additional restrictions3 on flow-through diversions are necessary, it is of course free to enact those limitations.
T 60 It may be environmentally preferable to keep water in the stream rather than to divert it into flow-through features. Yet water courts have discretion to consider environmental impacts when ruling on applications. See City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 86 (Colo.1996) ("Our decisions establish that the goal of maximum utilization must be 'implemented so as to ensure that water resources are utilized in harmony with the protection of other valuable state resources'"). Further, i#f flow-through water rights begin to threaten the environment, the Colorado Water Conservation Board (CCWCB") may seek a minimum instream flow. See maj. op. 117 (citing § 37-92-102(8)). Here, I note, the CWCB did not object to the Club's application for additional water, and the water court approved the Club's augmentation plan to replace evaporative depletions from Spring *460Creek.4 Should the legislature ultimately determine that these sorts of appropriations are contrary to public policy, it can step in and enact further limitations, tailored to the seale and nature of the problem.
{61 Instead, the majority today establishes a new rule categorically barring appropriations of flow-through water rights for aesthetic, recreational, and piscatorial purposes. Today's ruling calls into question numerous existing decrees and abolishes a well-established practice of the water courts in granting applications for such rights. Amici point to multiple decrees, issued in each of Colorado's seven water districts, for flow-through water rights for aesthetic, recreational, and piscatorial uses. For example, Water Division No. 3 has decreed direct-flow rights for "recreation, piscatorial, and fish and wildlife habitat"; Water Division No. 4 for "piscatorial and recreational use in a trout fishery," and, in another case, to supply a "Fishing Stream" and an "Amenity Stream"; and Water Division No. 5 for "piscatorial, recreation, and fish and wildlife habitat enhancement purposes."
T 62 This case also exemplifies the type of flow-through water right for aesthetic, recreational, and piscatorial purposes that I believe are valid. Diverting water into Spring Creek clearly creates benefits for the Club and its guests in the form of an aesthetic and fishing amenity. Further, the amount of water requested appears to have been reasonable, given the trial court's findings that the ditch could hold approximately 45 cfs as measured and that senior rights accounted for only about 22 cfs of that flow-leaving some 23 efs unappropriated. The Club's Director of Fishing testified that higher flows create more-challenging fishing conditions and help maintain suitable habitat for fish and aquatic invertebrates. Similarly, a report by the Club's expert explained that 21 cfs were necessary to "mimic natural hydrology in the Roaring Fork River." Based on this evidence, the water court concluded that 21 efs was an appropriate quantity of water for the Club's purposes.5
T63 In sum, I would hold that aesthetic, - recreational, and piscatorial uses qualify as beneficial uses under Colorado water law. In my view, the broad statutory definition of "beneficial use" encompasses the direct enjoyment of water diverted from a stream in a flow-through feature-and should the legislature conclude that such uses do not qualify as "beneficial," it may so clarify, see Vance, 205 P.3d at 1172 & n.6. I also see no reason why the water necessary to serve these purposes cannot be objectively quantified; indeed, just such a quantification appears to have happened in this case. I would therefore affirm the water court's award of 21 cfs to the Club for aesthetic, recreational, and piscatorial purposes, in addition to its rulings on the other issues in this case. Accordingly, I respectfully concur in part and dissent in part.
I am authorized to state that JUSTICE HOOD joins in this concurrence in part and dissent in part.
. Section 37-92-103(4) states:
"Beneficial use" means the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made. Without limiting the generality of the previous sentence, "beneficial use" includes:
(a) The impoundment of water for firefighting or storage for any purpose for which an appropriation is lawfully made, including recreational, fishery, or wildlife purposes;
(b) The diversion of water by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district for recreational in-channel diversion purposes; and
(c) For the benefit and enjoyment of present and future generations, the appropriation by the state of Colorado in the manner prescribed by law of such minimum flows between specific points or levels for and on natural streams and lakes as are required to preserve the natural environment to a reasonable degree.
(Emphasis added.)
. The legislature subsequently limited the right to appropriate water in stream for such purposes to various governmental entities. See ch. 305, sec. 2, § 37-92-103(4), (7), 2001 Colo. Sess. Laws 1187, 1188-89. It did not, however, restrict recreational, fishery, or wildlife purposes to storage projects. See id.
. Typically, applications for water rights are not reviewed by state agencies or subject to public comment, as are instream flows and RICDs. See maj. op. 1 17 (citing § 37-92-102(3)-(4), (5)-(6)). They are, however, adjudicated by water courts, and anyone may oppose an application by, for example, introducing evidence that the amount of water sought is excessive for the purposes stated in the application. See § 37-92-302(1)(b), C.R.S. (2014).
. The CWCB objected to the Club's proposed augmentation plan, but the Club ultimately agreed to curtail its diversion if the minimum instream flow was not satisfied.
. Quantification should not be based solely on the applicant's subjective view of the amount of water necessary to serve the applicant's purposes. See Upper Gunnison, 109 P.3d at 603 (instructing the water court not to take "at face value" the assertions of an applicant in quantifying the amount of water needed for a "reasonable recreation experience"). The water court's findings here were not based solely on the Club's own representations as to the amount of water needed. The water court heard conflicting testimony, based on the U.S. Army Corps of Engineers' permitting document for the construction of Spring Creek, suggesting that the feature was not designed to mimic the Roaring Fork River. It also explicitly referenced testimony suggesting that the ditch could not accommodate the 21 cfs requested. It found otherwise, however, and "factual findings of [the] water court that are supported by competent evidence in the record will not be disturbed on appeal," Bijou Irrigation, 926 P.2d at 82 n.75.