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iv. Denying or Minimizing an Appropriation to Preserve Water for Future Use Is a <br />Concept Long Ago Rejected by This Court <br />As discussed in detail in the Breckenridge Brief §V.D.4.iv., there is no legal basis in <br />Colorado to limit a beneficial use of water to conserve water for speculative future uses. The <br />whole notion is inconsistent with Colorado's prior appropriation doctrine. The only legal theory <br />that denies a present appropriation to preserve water for future uses is the public trust doctrine, <br />which has repeatedly been rejected by this Court in the water rights context. See e.g. Bd. of <br />County Comm'rs v. United States, 891 P.2d 952, 972 (Colo. 1995). The irony is that where the <br />public trust doctrine has been applied to water rights it was used to leave water in the stream for <br />recreation and the environment. See Nat'l Audubon Soc'y v. Superior Court, 658 P.2d 709 (Cal. <br />1983), cert. denied, 464 U.S. 977. The State would apply that principal to protect those that <br />already have the right to appropriate water rights. <br />Not only is there no legal basis to justify minimizing or denying the District's water rights <br />on policy grounds, there is no practical reason to do so. A water right for recreation raises no <br />unique concerns. Any new water right has the potential to impact future water rights or <br />exchanges, but that is not a reason to limit that right. Nor does the mere size of the District water <br />right raise a concern. For example, if the District had built a hydroelectric plant on Gore Creek <br />designed to produce maximum power at 400 c.f.s., the practical water right issues would be the <br />same. It is highly unlikely that the State would argue that a hydropower plant should be limited <br />to the generation of some minimum kilowatt hour to save water for future upstream diversions. <br />"whitewater" forms at the structures, (v.XI, p.53), the photographs show "whitewater" at <br />virtually every flow. See District Trial Exhibits V -40.1 to V -40.9. <br />Sb1549 -21- <br />