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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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Court applied to this issue, the facts supporting Breckenridge's Decree, and a response to the <br />State's arguments. <br />1. "Diversion" May Occur by In- Channel Control of Water and Control Occurs <br />When Structures Function as Designed <br />The Water Right Determination and Administration Act of 1969 defines "diversion" as <br />"controlling water in its natural course or location, by means of a ... reservoir ... or other <br />structure or device." § 37 -92- 103(7), 10 C.R.S. (2000) (emphasis added) ( "Section 103(7) ").4 <br />This definition, on its face, allows for a statutory diversion by exerting control over the water in- <br />channel by some structure or device other than a reservoir or impoundment. Thus, removing <br />water from the stream is not the only way to accomplish a diversion in Colorado. <br />Section 103(7) is consistent with long- standing case law. As early as 1883, this Court <br />rejected the argument that an appropriation was invalid because no ditch was constructed. See <br />Thomas v. Guiraud, 6 Colo. 530, 533 (1883) ( "The true test of appropriation of water is the <br />successful application thereof to the beneficial use designed; and the method of diverting or <br />carrying the same... is immaterial. "). This Court has confirmed this principle on a number of <br />subsequent occasions. See, e.g., Larimer Co. Reservoir Co. v. Luthe, 8 Colo. 614, 616, 9 P. 794, <br />796 (1886) (holding that "there may be a constitutional appropriation of water without its being <br />at the instant taken from the bed of the stream "); Genoa v. Westfall, 141 Colo. 533, 547, 349 <br />P.2d 370, 378 (1960) ( "It is not necessary in every case for an appropriator of water to construct <br />ditches or artificial ways through which the water might be taken from the stream in order that a <br />valid appropriation be made. The only indispensable requirements are that the appropriator <br />4 The full provision applicable to the Breckenridge filing was: "`Diversion' or `divert' means <br />removing water from its natural course or location, or controlling water in its natural course or <br />location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or <br />other structure or device." § 37 -92- 103(7), 10 C.R.S. (2000). <br />Sb1546 -11- <br />
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