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Last modified
7/15/2010 1:24:56 PM
Creation date
7/7/2010 2:30:39 PM
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Water Supply Protection
Description
Case No. 00CW259 Vail RICD and Case No. 00CW281 Breckenridge RICD
State
CO
Basin
Colorado Mainstem
Water Division
5
Date
4/29/2002
Author
Ken Salazar, Susan Schneider, John Cyran, Shana Smilovits
Title
Trial Brief
Water Supply Pro - Doc Type
Court Documents
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his taking the fraction of the whole flow to which he is entitled." Colorado Springs v. <br />Bender 148 Colo. 458, 366 P.2d 552, 555 (1961). The economic benefits derived from <br />leaving the water in stream for parks, recreation or scenery do not constitute a beneficial <br />use. Empire Water & Power Co. v. Cascade Town Co. 205 F. 123 (8"' Cir. 1913). <br />The Applicants' claims are not reasonable because they appropriate virtually <br />the entire hydrograph by boulders in the stream. Water must not be appropriated "so <br />as to deprive a whole neighborhood or community of it uses, and vest an absolute <br />monopoly in a single individual." Schodde 224 U.S. at 121, 32 S.Ct. at 473; see also <br />Bender 366 P.2d at 555. The amounts of water claimed by the applicants are <br />unrealistically high, and undermine the policy of maximum beneficial use. The <br />applicants are claiming essentially the entire hydrograph for Gore Creels and the Blue <br />River, when the applicants' own evidence will show that lesser amounts fulfill the <br />applicants' intended purposes. The applicants also are claiming water at times when <br />the water claimed cannot be put to beneficial use to fulfill the applicants intended <br />purpose. <br />B. Without the requirement of "impoundment" for recreational uses, <br />any water user could claim the entire flow of any stream for recreational purposes. <br />Section 37 -92- 103(4), C.R.S. (2001), defines "beneficial use" to include "the <br />impoundment of water for recreational purposes, including fishery and wildlife." <br />(emphasis added). The inclusion of the word "impoundment" for recreational uses must <br />mean the exclusion of recreational uses for water that is not impounded. Beeghly v. <br />Mack 20 P.3d 610, 612 (Colo. 2001). If the Legislature had intended that water could be <br />used for recreational purposes but not be impounded, it would not have included this <br />limitation in the statute. The impoundment language, the "controlling in the stream" <br />language of section 37 -92- 103(7), and the capture and possession language of section <br />37 -92- 305(9) show clearly that the legislature contemplated that in- channel <br />appropriations would be limited to circumstances where the claimed water was <br />impounded. Without these requirements any water user could claim the entire flow of <br />any stream for recreational purposes. <br />The Applicants would have this Court believe that there has never been an <br />impoundment requirement to use water for recreational purposes. If the Applicants' <br />argument were accepted, then this Court would be effectively ruling that in 1969 (when <br />the legislature first provided for impoundment for recreation), the legislature intended <br />that water could be appropriated for recreational purposes in the stream without diversion <br />or impoundment. The argument that control occurs where the water runs freely instream <br />(without impoundment) disregards the language of the statute, the intent of the legislature <br />and the long- standing case law established by the Colorado Supreme Court. <br />In Bd. of County Com'rs v. Crystal Creek, 14 P.3d 325, 339 -340 (Colo. 2000), <br />the Colorado Supreme Court allowed a claim for recreational use solely because it <br />was only one of the purposes of the reservoirs. The Court cited the case of Jicarilla <br />
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