Findings of Fact, Conclusions of Law and Decree of the Water Court

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JUN -07 -2002 16:11 FROM -DOL NATURAL RESOURCES 00CW281, Div. 5 Decree 3038663558 T-459 P.015 /018 F -678 For all of the foregoing reasons, the Court concludes that the flows from 100 cfs up to 500 cfs can and will be put to beneficial use and are not wasted. The Court recognizes that the Town of Breckenridge claimed amounts of waterless than 500 cfs in some months of the years as identified in paragraph 4F. The testimony also demonstrated that the water diverted and controlled by the Park at these lower flows is also beneficially used for recreational purposes. Therefore, the Court further finds that at amounts above 100 cfs and less than the 500 cfs are also put to beneficial use and are not wasted. The Court also finds that the water controlled by the Park structures is incidentally used for piscatorial purposes. However, the Court concludes that there is insufficient evidence to support an appropriation for that purpose separately and apart from the operation of the whitewater park and that the application for piscatorial rights should be denied. I. Name and Address of Owner of 1- nd on Which Structures Are Located The structures which constitute the Town of Breckenridge Whitewater Park are located on land owned by the Town of Breckenridge. f. Reasonableness The Court concludes that the amount ofwater claimed by Town ofBreckenridge between 100 cfs and 500 cfs is reasonable to serve the Town of Breckenridge's 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 Town of Breckenridge made the appropriation. When tested against the Town ofBreckenridge's purposes and the down - stream reuses ofthis non consumptive water right as explained in paragraph 4H above, as well as the efficiency of the diversion detailed in paragraph 40 above, the Court concludes that the 500 c.f s. claimed by the Town ofBreckenridge in June, and the lesser amounts claimed in the other months as set forth in paragraph 4F, are reasonable and there is no waste. At flows less than 100 cfs, the use of the water is not reasonable as the testimony at trial established that whitewater features do not appear until the flow exceeds 100 cfs. 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. Downstream of the Park, Denver's Dillon Reservoir and Roberts Tunnel rights total 252,678 acre -feet for storage (excluding second fill) and 788 c.f.s. for direct diversion. The Bureau ofReclamation's Green Mountain Reservoir and Powerplant rights total 154,645 a.f. and 1,726 c.f.s. The water rights for the Shoshone Powerplant total 1,408 c.f.s. Between these three entities, there are administrative calls year -round against upstream juniors in most average and low -flow years. Specifically, the only occasions when calls do not originate from Green Mountain Reservoir and Powerplant are in those years when Green Mountain Reservoir physically spills (high -flow year) or when the hydropower units are down W970 —6—