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3. There is No Evidence That the Appropriation Was Accomplished Without <br />Waste. <br />The requirement of use without waste, Santa Fe Trail Ranches Prop. Owners Ass'n v. <br />Simpson, 990 P.2d 46, 54 (Colo. 1999), implies that appropriators may divert only the minimum <br />amount of water reasonably needed under the circumstances. In the present case, the Water Court <br />made no finding as to the minimum amount of water needed to accomplish Golden's intended <br />purpose. Rather, it merely found that boaters continued to use the whitewater course at high flows; <br />therefore, it concluded there was no waste. Water Court decree at page 6. The fact that boaters <br />continued to use the course at high flows does not constitute a finding that the claimed flows <br />represent the minimum amount of water reasonably needed to accomplish the intended purpose. Nor <br />does it mean that higher flows are not wasted, assuming that the same use could be achieved with <br />lower flows using a more efficient course design. <br />Golden's claim that high flows are not wasted because boaters continue to use the course <br />is analogous to a farmer claiming that irrigation water is not wasted at excessive diversion rates as <br />long as the water runs over the field or eventually returns to the stream. The fact that water runs over <br />the field does not mean that it is beneficially used if less water could be diverted to accomplish the <br />same end. Nor does the fact that boaters use the course at high flows mean that water is not wasted <br />if lower flows could be used to achieve the same result. The farmer's appropriation would be limited <br />to the minimum amount of water that is reasonable and appropriate using reasonably efficient <br />practices without waste. Golden's claim should be limited in the same manner. <br />C:\DATA\Pner \Golden AppealTull Brief 2 -7 -02 glm.wpd 1 7 <br />February 7, 2002 (1:30pm) <br />