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Last modified
7/15/2010 1:17:55 PM
Creation date
7/7/2010 4:39:15 PM
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Water Supply Protection
Description
Case No. 02SA226, Breckenridge
State
CO
Basin
Colorado Mainstem
Water Division
5
Date
1/17/2003
Author
Ken Salazar, Susan Schneider
Title
Opening Brief
Water Supply Pro - Doc Type
Court Documents
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Finally, under the water court's opinion in this case, all it would take for an appropriation <br />of the entire unappropriated hydrograph would be the ability and desire to attract boaters with <br />suitable rocks. Guidance from this Court would help future water appropriators in determining <br />the duty of water for recreational in- channel diversions, and would limit those appropriations to <br />what is reasonable and appropriate. This Court should set an objective, uniform legal standard <br />that encourages maximum utilization instead of maximum desire, and provides uniformity and <br />fairness. <br />B. This Court must provide a uniform definition of the <br />reasonableness of the amounts claimed for <br />recreational instream uses. <br />A water appropriator is only entitled to take "that amount of water that is reasonable and <br />appropriate under reasonably efficient practices to accomplish without waste the purpose for <br />which the appropriation" is made in order to ensure maximum utilization and prevent use of this <br />scarce resource "that is unrealistically high." § 37- 92- 103(4) (emphasis added); Consolidated <br />Home Supply v. Berthoud 896 P.2d 260, 271 (Colo. 1995); Fellhauer v. People 447 P.2d 986, <br />944 (Colo. 1968); County Com'rs of County of Arapahoe, 891 P.2d 952, 962 (Colo. 1995). <br />In Colorado, the requirement that water be physically diverted from the stream through a <br />ditch or tunnel created inherent limits on the amount of water that could be appropriated. Deriver <br />v. Northern Colo. Water Conservancy Dist. 276 P.2d 992, 998 (Colo. 1954). Similarly, the <br />amount of water granted in Fort Collins was appropriately limited to low flows only (a <br />reasonable amount of 30 c.f.s.). Because there were no traditional physical limits on the amount <br />17 <br />
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