Findings of Fact, Conclusions of Law and Decree of the Water Court (2)

Home Browse Search

JUN -07 -2002 16:08 FROM -DOL NATURAL RESOURCES OOCW259, Div. 5 Decree 3038663558 T -459 P.007/018 F -678 Y. Name and Address of Owner of LpA on Whirh S ructures Are Located The structures that constitute the Park are located on land owned by the Town of Vail. J. Reasonableness The Court concludes that the amount of water claimed is reasonable to serve the intended purposes in making the appropriation. "Beneficial use" is 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." C.R.S. § 37 -92- 103(4)(2000). The question, therefore, is not whether the amount of water claimed is "reasonable" in the abstract, or as compared to other potential future uses of the water, but whether the amount claimed is reasonable for the purposes for which the appropriation was made. When tested against the intended purposes and the downstream reuses of this non- consumptive water right as explained in paragraph 4H above, as well as the efficiency of the diversion detailed in paragraph 4G above, the Court concludes that the 400 c_f s_ claimed in May, June, and July and the lesser amounts claimed in the other months as set forth in paragraph 4F, are reasonable and there is no waste. At flows of less than 30 c.f.s. the use of water is not reasonable as the testimony at trial established that whitewater features do not appear until the flow exceeds 30 c.f.s. Although not required to consider other potential uses of water in quantifying a water right under the beneficial use statute, the Court notes that the rights at issue are non - consumptive, and the water claimed is always available for all downstream uses. The water rights for the Park are junior to all existing adjudicated water rights, absolute or conditional, in the Gore Creek basin. Moreover, the CWCB's instream flow appropriations on Gore Creek will not be impacted because the Park does not remove water from the stream. None of the other objectors have any water rights in the Gore Creek basin, and as the Park's use of water is non - consumptive, the Park does not injure diversion of water from other tributaries of the Colorado River. Thus, the Court finds that the claimed water rights do not injure any vested water rights or decreed conditional rights. Furthermore, the Court finds that the water rights for the Park are needed to secure a priority against future exchanges of water through the Park, but the water rights for the Park will not affect existing decreed exchanges_ K. Can and Will The Court finds that the District can and will perfect the conditional portions of the claimed amounts within a reasonable time consistent with C.R.S. § 37-92 - 305(9)(b)(2000) at flows between 30 and 400 cfs. In this regard, the Park has already been fully constructed, the beneficial use of the claimed amounts has commenced, and sufficient water is available for appropriation. L. Colorado's CMpact Emitlements There is no evidence of any intent on the part of the District to export water outside Colorado, and the water rights sought in the application will not have that effect. The Park is located 44 miles upstream from the Shoshone Powerplant, and 165 miles upstream of the Colorado -Utah state line. There are numerous water rights, xbmiooa —6—