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, •? <br />prehearing statement.) Such structures were found by both Water Division No. 5 and <br />Water Division No. 1 to "divert, capture and control" streamflows, in the final decrees in <br />the application filed by the City of Golden, the Eagle River Water and Sanitation District, <br />and the Town of Breckenridge, all cited above. These cases were decided under the <br />authority of City of Thornton v. City of Fort Collins, and C.R.S. § 37-92-103(7), which <br />defines "diversion" to include "controlling water in its natural course or location by <br />means of a... structure or device." S.B. 216 amended the definition of "diversion" to <br />include as well the "control of water in its natural course or location" for recreational in- <br />channel purposes by specified entities. Nothing suggests that the concept of control of <br />water in its natural course as used in S.B. 216 is any different from the general concept of <br />controlling water in its natural course or location previously found in C.R.S. § 37-92- <br />103(7). In fact, the structures designed for the Pueblo whitewater park, a post-S.B. 216 <br />case in which the CWCB recommended approval of the application, are substantially <br />similar to those designed for the Gunnison Whitewater Park. Neither the CWCB Staff nor <br />any other party has provided evidence to contradict the findings in the Golden, Eagle and <br />Breclcenridge cases, or implicit in the Pueblo case that such structures control the water, <br />nor to contradict Mr. Lacy's statements that the structures designed for the Gunnison <br />Whitewater Park will divert and control the flow at specific points to create various water <br />features, or that the structures divert, capture and control water at all of the flow rates for <br />which the District's RICD is sought. <br />c. The Flows Sought by the District are the Minimum Stream Flows for a <br />Reasonable Recreation Experience in and on the Water <br />Amounts. CWCB Staff and Natural Energy both.apparently dispute the flow rates <br />appropriated by the District for a reasonable recreation experience, but neither provides <br />any evidence or identifies any witnesses to support this contention. <br />The appropriateness of the flows requested by the District should be deteimined in <br />the first instance by the intent of the District as appropriator, as is the case with other <br />water rights. Thus what constitutes the "minimum stream flow ... for a reasonable <br />recreation experience in and on the water" (C.R.S. § 37-92-103(10.3)) should be <br />determined primarily by the type of recreation experience the RICD applicant intends to <br />provide with the requested water right. As stated in the District's prehearing statement, <br />there is no single flow rate that provides a"reasonable recreation experience" to the entire <br />population of recreators for whom the District desires to provide such an experience. The <br />Guiulison River in the RICD reach has different characteristics at different times of the <br />year, and the whitewater park is expected to provide "reasonable recreation experiences" <br />for a variety of skill levels, interests, and water craft. (See Exhibit G; testimony of Gary <br />Lacy and Mark Gibson.) The District intends that the whitewater course be widely used <br />by tourists and local residents, including, in particular, the Western State College <br />recreation department and its students, for a variety of recreational uses, including <br />kayaking, tubing, rafting, canoeing, fishing, and other water-based activities. (Testimony <br />of John DeVore; Mark Gibson.) <br />4