Case No. 02SA226 Town of Breckenridge Answer Brief February 2003

• Description: 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
• Water Supply Pro - Doc Type: Court Documents

The Fort Collins Decision is Not a Narrow Exception Limited to
ItsFacts .......................................... .17-
iv. Control is Measured in the Context of the Intended Beneficial
Use .:........... -18-
V. Water Does Not Continue to Flow as it Did Prior to the Park's
Construction ........ ............................... -18-
D. The Amounts Decreed Are Reasonable .... .19-
1. The Water Court Applied the Appropriate Beneficial Use Standard -19-
2. The Park Is a Beneficial Use )roviding Substantial Economic Benefit -19-
3. The Water Court's Factual Fin di of Reasonableness and Lack of Waste
Are Well Supported by the Evidence .......................... .21-
i. The Water Ri -ghts Are Reasonable In Terms of the Beneficial Use
Sought....................
ii. The Water Rights Are Also Reasonable In the Context of the
Upper Blue River and the Downstream Users ............. .22-
4. The State's A- -ments on Duty of Water Reasonableness and Waste Are
Unsupported By Existing Law _23-
i. No "Duty of Water" Theory Require_ spriator to Forego
Diversions that Are Applied to Beneficial Use ............ .23-
ii. There Are No "Inconsistencies" Between the Golden and
Breckenridge Decrees ...... . . . . . . .... .24-
iii. Reasonableness and Waste Require Case b Case Determinations
by the Water Court Not Empirical Formulae ............. .24-
iv. Denying or Minimizing an A ro riation to Preserve Water for
Future Use Based Upon Policy Concerns Is a Concept Lo_ns? Aeo
Rejected by This Court .............. . . .25-
V. The Park Provides the Ultimate in Maximum Utilization .... -26-
E. Senate Bill 216 Addresses the State's Polic Issues .................... .26-
Sb1546 -iii-