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CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE TWON OF BRECKENRIDGE, 08CW73 <br /> IN SUMMIT COUNTY,COLORADO <br /> B. C.R.C.P. 56(h) <br /> The court determines that the Decree entered in Case No. 00CW281 in conjunction with <br /> the Clarifying Order is unambiguous and permits Respondent to call for the water rights in the <br /> amounts claimed on page 4 paragraph 4(F) of the Decree entered in Case No. 00CW281 for all <br /> months, including those months in which the amounts claimed are less than 100 cfs. While the <br /> Movant correctly asserts that the water court found that beneficial use only occurs at flows at 100 <br /> cfs or greater,paragraph 4(F)and the language of the Clarifying Order lead this court to <br /> conclude that in Case No. 00CW281, the Water Court further recognized that in some months, <br /> the flows existing at the whitewater structures may be such that calling for the amounts claimed <br /> in April September and October would enable Respondent to reach 100 cfs or more at the <br /> whitewater structures. The Clarifying Order conditions calling for water in the amounts claimed <br /> in April, September and October to times when said call "will provide 100 cfs or more for the <br /> Park water rights granted herein." Clarifying Order paragraph 3. Thus, the Decree and Clarifying <br /> Order allow for a scenario in which, hypothetically, if there is sufficient existing flow at the <br /> whitewater structures, Respondent could call for the amounts claimed in April, September and <br /> October in order to reach the 100 cfs minimum flow rate at the whitewater structures. On the <br /> other hand, the Decree and Clarifying Order are clear that if Respondent is unable to reach 100 <br /> cfs at the whitewater structures taking into account existing flows and the amounts decreed for <br /> the recreational use in a given month, Respondent would not be permitted to place that call. For <br /> instance, if the existing flows are such at the whitewater structures in April that calling for the 39 <br /> cfs would not enable Respondent to reach the minimum of 100 cfs, Respondent cannot place <br /> such a call pursuant to the terms and conditions of the Decree and Clarifying Order. Based on <br /> the foregoing conclusions, the court finds that Respondent can claim an absolute or conditional <br /> water right in an amount less than 100 cfs conditioned upon the existence of sufficient existing <br /> flows at the whitewater structure to enable the aggregate amount to reach the minimum of 100 <br /> cfs. The Motion for Determination of Question of Law is HEREBY DENIED. <br /> Attorneys fees requested by Respondent are HEREBY DENIED. Each party is <br /> responsible for the individual costs incurred in filings the subject pleadings. <br /> Page 3 of 4 <br />