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Case No. 02SA226 Town of Breckenridge Answer Brief February 2003
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Case No. 02SA226 Town of Breckenridge Answer Brief February 2003
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Water Supply Protection
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Case No. 02SA226 Town of Breckenridge Answer Brief February 2003
State
CO
Date
2/18/2003
Author
Porzak, Glenn E.; Bushong, Steven J.
Title
Case No. 02SA226 Town of Breckenridge Answer Brief February 2003
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The State's policy concerns are not applicable to the facts of the Breckenridge case and, in <br />any event, were already addressed by the General Assembly. The CWCB promoted legislation, <br />Senate Bill 01 -216 ( "SB 216 "), in an effort to control and restrict what were called recreational <br />in- channel diversions ( "RICDs "). The General Assembly did not prohibit such rights. Instead, it <br />adopted a modified SB 216, acknowledging and reconfirming such water rights while imposing <br />additional considerations for the Water Court. SB 216 is applicable to all future RICD water <br />right applications, but the Legislature refused to impose the new law upon applications already <br />pending (including Breckenridge's application). In a disingenuous effort at spin control, the <br />State now claims that RICDs were illegal prior to SB 216 and because the Breckenridge <br />application was exempted, its water rights should be denied. Such an argument highlights the <br />lack of any factual or legal basis for the State's appeal. <br />V. ARGUMENT <br />A. The Water Court's Factual Findings are Entitled to Substantial Deference <br />The Water Court refused to treat water rights for recreation differently than other water <br />rights. Instead, it applied traditional legal standards to the often undisputed evidence presented at <br />trial in support of Breckenridge's application. The Decree issued by the Water Court is based <br />upon its factual findings under these well established legal principles. <br />Factual determinations by the trial court are entitled to deference and are only reversed if <br />"the evidence is wholly insufficient to support those determinations." City of Thornton v. Bijou <br />Irrigation Co., 926 P.2d 1, 40 (Colo. 1996) (quoting Bd. of County Comm'rs v. Upper Gunnison <br />River Water Conserv. Dist., 838 P.2d 840, 847 (Colo. 1992)); see also Arapahoe County Bd. of <br />Equalization v. Podoll, 935 P:2d 14, 18 (Colo. 1997). The "sole inquiry" of the appellate court is <br />"whether there was sufficient evidence in the record to sustain the trial court's findings." Linley <br />Sb 1546 -7- <br />
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