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• <br /> r- <br /> DISTRICT COURT, WATER DIVISION 5,STATE OF <br /> COLORADO <br /> Court Address: Garfield County Courthouse <br /> 109 8th Street, Suite 104 <br /> Glenwood Springs, CO 81601 <br /> CONCERNING THE APPLICATION FOR WATER RIGHTS OF: <br /> THE TOWN OF BRECKENRIDGE , COURT USE ONLY <br /> Case No. 08CW73 <br /> IN SUMMIT COUNTY, COLORADO I <br /> ORDER ON MOTION FOR DETERMINATION OF QUESTION OF LAW <br /> On April 10, 2009, the Colorado Water Conservation Board(hereinafter"Movant") filed <br /> a motion for determination of question of law. Town of Breckenridge (hereinafter <br /> "Respondent") timely replied. The motion is now at issue before the court. <br /> I. FACTUAL BACKGROUND <br /> On June 5, 2002 the Water Court for Water Division No. 5 entered a decree in Case No. <br /> 00CW281. The decree granted conditional water rights to Respondent for recreation purposes. <br /> Page 4 paragraph 4(F) of said decree sets forth a table of amounts claimed for recreation <br /> purposes from April through October. The months in which less than 100 cfs were claimed <br /> include April in the amount of 39 cfs, September in the amount of 82 cfs and October in the <br /> amount of 51 cfs. The decree goes on to state that"[t]he structures do not create whitewater <br /> features at flows less than 100 cfs." Decree page 5 paragraph 4(H). The court then concluded <br /> that "the flows from 100 cfs to 500 cfs can and will be put to beneficial use and are not wasted." <br /> Decree page 6 paragraph 4(H). The Ruling and Decree portion also states that "[t]he conditional <br /> water rights for the structures constituting the Park are hereby decreed in the amounts set forth in <br /> paragraph 4(F) above when flows exceed 100 cfs." Decree page 7 Ruling and Decree paragraph <br /> 2. On June 17, 2002, respondent filed a motion for clarification of the Water Court Decree <br /> requesting a sentence be added to the decree that stated"Breckenridge shall be entitled to place a <br /> call against any upstream water rights junior to the Park if that call will provide 100 cfs or more <br /> for the Park water rights granted herein." On July 9, 2002, the water court singed the motion"so <br /> ordered."Id. <br /> II. STANDARDS OF REVIEW <br /> Colorado Rule of Civil Procedure 56(h)provides that a party may move for a <br /> determination of question of law at any time after the last required pleading and if there is no <br />