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Applicant's Closing Brief: Case No. 02CW038
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Applicant's Closing Brief: Case No. 02CW038
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Last modified
1/26/2010 4:41:33 PM
Creation date
7/28/2009 11:54:47 AM
Metadata
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Template:
Water Supply Protection
File Number
8230.2B3
Description
Pleadings
State
CO
Basin
South Platte
Water Division
4
Date
10/22/2003
Author
Cynthia F. Covell
Title
Applicant's Closing Brief: Case No. 02CW038
Water Supply Pro - Doc Type
Court Documents
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F <br />Upper Gunnison River Water Conservancy District <br />02CW038 <br />Anti-speculation is thus at the heart ofthe maximumutilization. doctrine. How then dcies the <br />concept of "maximum utilization" actually fit into the SB 216 analysis? This 102(6) factor is a <br />counterbalance to the analysis performed under the compact impairment factor. Evaluating compact <br />impairment necessarily requires some speculation about how compact impau-ment might occur. <br />However, extension of this speculation to undefined potential future uses should not be allowe;d. As <br />the Supreme Court explained in Vidler, "[o]ur constitution guarantees a riDht to appropriate, not a <br />right to speculate." Id. at 568. <br />Maxisnum utilization is not promoted by speculation, and the District's current need for a <br />water right should not be denied because speculative future projects might be impacted. Ftather, <br />reasonable efficiency and waste should be considered in applying the maximumutilization factor, and <br />the court should consider whether there are tools such as augmentation plans to allow mitigzLtion of <br />any impacts from the recreational water right. <br />While an appropriator cannot command the entire flow of the stream just to enable his <br />inefficient diversion of a small portion, Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552 <br />(1961), SB 216, consistent with Fos-t Collins, specifically allows a recreational in-channel diversion <br />to capture and control the flow of a river in its natural channel. As in Fort Collins, the entire flow <br />of the river can be controlled by properly-conshucted diversion structures that function as iritended <br />for application of the water to beneficial use. Here the structures desib ed for the Gtinnison <br />-26-
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