Case No. 02SA224 Eagle River Water and Sanitation District Answer Brief February 2003

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Breckenridge Brief § V.D. herein. The following is a brief summary of those arguments and a response to the new arguments raised by Northern and the State on this point. No "Duty of Water" Theory Requires an Appropriator to Forego Diversions that Are Applied to Beneficial Use A "duty of water" is simply a legal theory that.prevents a farmer from diverting more water than can be put to beneficial use without waste, under the circumstances, yet specifically allows the farmer to maximize the crops. Farmers Highline Canal & Res Co v Golden, 272 P.2d 629, 634 (1954). Although the District does not believe the "duty of water" principle is applicable, its appropriation is fully consistent with the underlying concept. In this case, the full amount of water diverted is applied to maximize the beneficial use. Just like a hydropower plant, the Water Court held that the District obtains more benefit and more economic value with increased diversions up to the design capacity of its Park. Decree at 6. In short, a "duty of water" does not require the District to limit its diversions if that, in turn, limits its beneficial use. Waste implies there is no additional beneficial use associated with an additional increment of water. The undisputed facts were that beneficial use increases as diversions increase, up to at least 400 c.f.s. ii. There is Nothing "Subjective" about Maximizing Beneficial Use. Northern claims that the water rights are based only upon "the subjective preferences of its users" and that a 400 cfs water right is not reasonable "simply because some boaters use the Course at these flows or find these flows desirable." Northern's Br. at 17. Northern completely misses the point. Higher flows create greater beneficial use. Decree at 5. That is undisputed. In fact, 98% of the total variation in use of the Park observed in 2001 was explained by flows. (v.XI, p.93, Sb 1549 -18-