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Opening Brief
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Last modified
1/26/2010 4:41:42 PM
Creation date
7/29/2009 3:05:54 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8230.2F
Description
Colorado Supreme Court Appeal
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
7/26/2004
Author
Ken Salazar, Susan Schneider
Title
Opening Brief
Water Supply Pro - Doc Type
Court Documents
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The CWCB rules and determinations on "maximum utilization" are entitled to deference. <br />Urbish v. Lamm, 761 P.2d 756 (Colo.1988) (agency charged with enforcement of that statute is <br />entitled to deference in its interpretation); CF & I Steel, L.P. v. Pub. Utils. Comm'n, 949 P.2d <br />577, 585 (Colo.1997) (courts must give significant weight to an agency's interpretation of its <br />own enabling statute). <br />First, SB 216 supports a finding that the RICD promotes maximum utilization at 250 <br />c.f.s. because the intent of SB 216 was to allow only minimal and reasonable appropriations of <br />water to ensure that the state could develop and use its water in the, future. § 37-92-103(10.3). <br />Additionally, the Senate heard testimony that because the diversion requirement created inherent <br />physical and monetary limitations on the amount of water that could be claimed and there were <br />no such limitations for instream uses, the CWCB process could ensure maximum utilization. <br />(Exhibit K, p.36). <br />Second, the case law supports a finding that the RICD promotes maximum utilization at <br />250 c.f.s. At 1500 c.f.s., the Applicant would be taking almost the entire flow of the stream to <br />allow it to provide a reasonable boating experience, which could occur at a fraction of that <br />requested flow and in fact, did occur in this specific reach without an RICD water right and <br />without impact to other potential water users. (v. IV, p. 68). "[E]ach diverter must establish <br />some reasonable means of effectuating his diversion. He is not entitled to command the whole <br />or a substantial flow of the stream merely to facilitate his taking the fraction of the whole flow to <br />which he is entitled." Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552 (Colo. 1961), <br />citing Schodde v. Twin Falls Land & Water Co., 224 U.S. 107 (1912); A-B Cattle Co. v. U.S., <br />589 P2d 57, 61 (Colo. 1978)(maximum utilization demands efficient use of water). "[T]he <br />24
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