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4. The State's Arguments on Duty of Water, Reasonableness, and Waste Are <br />Unsupported By Existing Law <br />i. No "Duty of Water" Theory Requires an Appropriator to Forego Diversions that <br />Are Applied to Beneficial Use <br />The State argues that this Court should set a duty of water for recreational boating. State's <br />Br. at 16. A "duty of water" is simply a legal theory that prevents a farmer from diverting more <br />water than can be put to beneficial use without waste. Because the Water Court found no waste <br />and that the full amount of the appropriation was being put to beneficial use, no legal theory <br />(including duty of water) requires Breckenridge to forego that beneficial use. <br />Duty of water is: <br />that measure of water, which, by careful management and use, without <br />wastage, is reasonably required to be applied to any given tract of land for <br />such period of time as may be adequate to produce therefrom a maximum <br />amount of such crops as ordinarily are grown thereon. It is not a hard <br />and fast unit of measurement, but is variable according to conditions. <br />Farmers Highline Canal & Res. Co. v. Golden, 129 Colo. 575, 584 -85, 272 P.2d 629, 634 (1954) <br />(emphasis added). <br />This definition of duty of water leads to four basic conclusions. First, duty of water is <br />applied to irrigation and not other uses. Second, even if applied outside the irrigation context, it <br />expressly provides for the maximum amount of beneficial use. In other words, one is entitled to <br />maximize its beneficial use. Third, even a duty of water is not "a hard and fast unit of <br />measurement;" rather, it requires the court to examine the facts of each case. Fourth, the concept <br />is inextricably tied to the concept of waste, with waste being the lack of any beneficial use. <br />Thus, water in excess of that needed to grow the maximum amount of crops on a given piece of <br />land is not being put to any beneficial use and is wasted water. In short, the "duty of water" is <br />designed to limit waste where there is no beneficial use. <br />Sb 1546 -23- <br />