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<br />1. Whether the District's Application Meets the Requirements of a <br />Recreational In-Channel Diversion as Defined bv S.B. 216. <br />The District believes it is entitled to appropriate a water right for recreational <br />purpose independent of S.B. 216 by the authority of City of Thornton v. City of Fort <br />Collins, 830 P.2d 915 (Colo. 1992), which has formed the basis for water rights decreed <br />for recreational parks in the applications of the City of Golden, Case No. 98CW448 <br />(W.D. 1), the Town of Breckenridge, Case No. OOCW281 (W.D. 5), decreed and the <br />Eagle River Water and Sanitation District, Case No. OOCW259 (W.D. 5). Although the <br />City of Golden case is presently on appeal to the Colorado Supreme Court, no ruling has <br />been issued indicating that such water rights may not be obtained through traditional <br />water rights applications. The District has participated in the procedures set forth in S.B. <br />216 without waiving its right to challenge the applicability of S.B. 216 to its <br />appropriation, or other matters related to the constitutionality of S.B. 216, and its <br />implementing regulations. References herein to the District's water right as the "RICD" <br />c1o not constitute the District's acknowledgment that it may only obtain a recreational in- <br />channel water right pursuant to S.B. 216. <br />a. The District is a local g?overnment entity entitled bv S.B. 216 to <br />appropriate an RICD. <br />As noted above, it is undisputed that the District, as a lawfully-constituted <br />water conservancy district pursuant to C.R.S. § 37-45-101 et seq., is an entity <br />entitled to appropriate an RiCD. <br />b. The Control Structures Designed for the Gunnison Whitewater Course <br />DivertCapture Control and Place to Beneficial Use Water Between Specific <br />Points. <br />CWCB Staff acknowledges that the control structures designed for the Gunnison <br />Whitewater Course will divert, capture, and control water between specific points, and <br />place it to beneficial use. No other party disputes this. However, CWCB Staff questions <br />whether the structures will divert, capture and control the water and place it to beneficial <br />use at flow rates between 250 cfs and 2000 cfs, as stated by Gary Lacy in his report <br />attached to the District's prehearing statement as Exhibit C. Gary Lacy further explains <br />in his supplemental letter report dated August 26, 2002, a copy of which is attached to <br />this rebuttal statement as Exhibit G, that "[t]he structures are designed so that at the flows <br />requested, all of the water is controlled to create the recreational whitewater features. The <br />structures protrude into the stream channel and concentrate the flow into either the low <br />flow channel or the high flow channel, increasing velocity and creating certain wave <br />forms that are conducive to whitewater boating." <br />In fact, structures of the sort designed by Gary Lacy have been installed <br />throughout Colorado and the western United States. (See Exhibit D to the District's <br />3