Laserfiche WebLink
from the falls and the vegetation as an attraction and amenity, but the Court in Empire found that <br />the amount of water claimed by the Company was not an effective use of water to accomplish <br />the purpose for which the appropriation was lawfully made. Empire Power, 205 F. at 123. Just <br />as irrigation in Schodde and Empire could be reasonably accomplished at lower flows and with <br />smaller amounts of water, recreational boating can be accomplished with amounts of water <br />significantly less than Golden claimed and the water court awarded. <br />The water court also placed significance on the fact that the flows awarded to Golden did <br />not harm existing users because large flows were available to satisfy the demands of downstream <br />senior users. But as Schodde and Empire demonstrate, beneficial use is measured by objective <br />reasonableness and is not established merely because no one is deprived of water at the time of <br />the appropriation. <br />Moreover, as City of Colorado Springs v. Bender held, an appropriator is not entitled to <br />command the whole flow or a substantial portion of the flow of a stream merely to facilitate <br />taking a fraction of the whole to which the appropriator is entitled. 148 Colo. at 462, 366 P.2d at <br />555; see also § 37- 92- 102(2)(b), 10 C.R.S. (2001); Fellhauer v. People, 167 Colo. 320, 336, 447 <br />P.2d 986, 994 (1969); A -B Cattle v. United States, 196 Colo. 539, 544 -45, 589 P.2d 57, 60 -61 <br />(1979). Golden claimed, and the water court awarded, a substantial portion of the flow of Clear <br />Creek to facilitate a use that can be accomplished with a fraction of the flow. <br />Historically, this Court has held that the true test of an appropriation of water is <br />application of water to beneficial use. Thomas v. Guiraud, 6 Colo. 5' )0, 533 (1883); Larimer Co. <br />Reservoir Co. v. Luthe, 8 Colo. 614, 616, 9 P. 794, 796 (1886). Even if Golden's structures, or <br />some of them, control water in its natural course or location within the meaning of section 37 -92- <br />103(4), Golden claimed more water for its use than the amount of water that is reasonable and <br />IK, <br />