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

Home Browse Search

"optimal level" at 500 c.f.s. Accordingly, the minimum flow that maximizes the intended beneficial use is 500 c.f.s. Should this Court turn to SB 216 for "guidance," it will note there is no limit for mere "safe passage" in the bill. In fact, the SB 216 implementing rules originally proposed by the CWCB limited the recreational experience to "safe passage." In the end, however, the rules adopted by the CWCB define "reasonable recreation experience" as "allow[ing] individuals with suitable skills and abilities relating to the specific recreational activity for which the water right is being sought to partake in that activity." See App'x I, CWCB Rules (v.IV, pp.817 -822). This rule supports the findings in Breckenridge's Decree allowing the appropriator to specify the recreational activity for which the water right is sought. Thus, any effort to limit Breckenridge's Decree that even the CWCB did not find reasonable to impose on future whitewater parks under SB 216 should be summarily dismissed. In a final effort, the State asserts that Breckenridge can simply re -file its application under SB 216, and that doing so "will hardly affect" Breckenridge. State's Br. at 6. Such an argument is disingenuous at best. In the first instance, it breaches the legislative compromise exempting the Breckenridge filing from SB 216. See § 37- 92- 103(7), 10 C.R.S. (2002) ( "This does not apply to applications filed. prior to January 1, 2001. "). Second, it would force Breckenridge to undergo the costly new procedures of SB 216 and then incur the extensive cost of relitigating all the same issues already decided by the Water Court. Finally, were Breckenridge to refile, it would lose its priority. All of these results will indeed "affect" Breckenridge. MMIX- 00 CIM -31130 For all of the foregoing reasons, Breckenridge respectfully requests that this Court affirm the Water Court's Decree awarding conditional water rights for the Park. Sb 1546 -29-