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Trial Brief (2)
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Trial Brief (2)
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Last modified
7/15/2010 1:24:29 PM
Creation date
7/7/2010 2:44:22 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
4/1/2002
Author
Ken Salazar, Susan Schneider, John Cyran, Shana Smilovits
Title
Trial Brief
Water Supply Pro - Doc Type
Court Documents
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Under section 37 -92- 103(4), "beneficial use" includes "the impoundment of <br />water for recreational purposes, including fishery and wildlife. " (emphasis added). To <br />impound means "[t]o accumulate and store in a reservoir" or "[t]o accumulate (water) in a <br />reservoir." The American Heritage College Dictionary, 3rd Edition(1993); The <br />American Heritage Dictionary, 2nd College Edition(1982). The water claimed by the <br />applicants continues to flow almost exactly as it did prior to the Course construction. <br />Although the Court did not note that the water was impounded in Fort Collins the <br />photographs show that Fort Collins constructed its boat chute within a substantial dam <br />that impounded the water. <br />2. The plain language of section 37 -92- 103(4) and case law on beneficial use <br />require an appropriator to appropriate only that amount of water that is <br />reasonable and appropriate <br />Beneficial use is the measure and limit of a water right in Colorado. "A water <br />right comes into existence by applying state water to beneficial use. This has been <br />Colorado law since territorial days." Dallas Creek Water Co. v. Huey 933 P.2d 27, 34 <br />(Colo. 1997) (citing Platte Water Co. v. Northern Colo. Irrigation Co. 12 Colo.525, 531, <br />21 P. 711, 713 (1889) and Yunker v. Nichols 1 Colo. 551, 570 (1872). `Beneficial use" <br />is defined as "that amount of water that is reasonable and appropriate under <br />reasonably efficient practices to accomplish without waste the purpose for which the <br />5 The inclusion of the word "impoundment" for recreational uses must mean the <br />exclusion of recreational uses for water that is not impounded (without limiting the <br />generality of the amount of water needed for reasonable use). The inclusion of <br />specific language concerning prospective application for only one provision "implies <br />the exclusion of all not expressed, although all would have been implied had none <br />been expressed." Denver Joint Stock Land Bank v. Markham 107 P. 2d 313, 316 <br />(Colo. 1940). <br />
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