Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 9/29/2004
• Author: Barbara Green, Anne Castle, John M. Ely, David Baumgarten
• Title: Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County
• Water Supply Pro - Doc Type: Court Documents

September in which flows in the river fluctuate considerably. See Concerning tYle Application
for Water Ri ts oi' Unper Gunnison River Water Conservancv District in Gunnisom County,
Findings of Fact, C'.onclusions of Law and Order, pp. 3-5 (December 26, 2003).
The water c,ourt clearly understood that the prohibition against waste limdts a beneficial
use to the minimurn amount necessary to accomplish the purpose of the appropriation. It also
understood that the; legislature did not intend to deviate from this concept when it enacted
S.B. 216. The record cleazly establishes that the water court properly applied S.B. 216 when it
evaluated the amoiznt of the water sought by the applicant. See Concerning the AAplication for
Water Ri6ts of Upper Gunnison River Water Conservancy District in Gunnison Coun
Findings of Fact, (:onclusions of I,aw and Order, p. 17 (December 26, 2003) (discussing the
balance that must be struck between maximum utiliza.tion and beneficial use ag;ainst speculation
and waste and that S.B. 216 did not appeaz to change that balance).
b. The water court gave cazeful consideration to all evidenc;e regarding the
amount of water that should be decreed.
The water court considered evidence as to the minimum amount of water necessary for
the RICD in testirnony from several parties, including the CWCB. The CWCF3 recommended an
amount of 250 c.f:s., day in and day out. This appears to be a recommendatiori and not a finding
of fact, and therefbre, was not presumptively valid. Nevertheless, the court considered it subject
to the rebuttable presumption and received rebuttal evidence on this recommendation. The water
court also considE;red evidence from the applicant's witnesses that flows of 250 c.f s. would
attract expert kayakers during low flow times of the year, but would fail to ath-act kayakers at
that amount duruig high flow tunes of the year. The water court was supported in its decision by
the CWCB's adnussion that its conclusions regarding the effect of the S.B. 216 factors
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