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Finding of Fact, Conclusions of Law and Decree of the Water Court Concerning the Application for <br />Water Rights of the Town of Breckenridge, Water Division 5, Case No. OOCW281 (2002); Final <br />Decree, Concerning the Application for Water Rights of the Upper Gunnison River Water <br />Conservancy District, Water Division 4, Case No. 02CW038 (2003). In fact, in the proceeding <br />regarding the City of Pueblo's RICD application, the Board also found that Mr. Lacy's designs can <br />divert water. Findings of Fact and Final Recommendation of the Colorado Water Conservation <br />Board to the Water Court, Water Division 2, Case No. O1 CW 160 (2002). In light of these previous <br />findings, Mr. Lacy's report clearly demonstrates compliance with the diversion requirement. <br />Moreover, the water right sought by the Applicant is a conditional one. Application for <br />Surface Water Rights of the Ciry of Steamboat Springs ("Application") at 2. Because of the policy <br />under Colorado law of allowing an applicant to acquire a conditional water right before completing <br />the actual diversion of water, the Applicant is not required to show that the Steamboat Course does <br />in fact already divert and control the water. See C.R.S. § 37-92-103(6). The Applicant only must <br />demonstrate that it can and will divert water. See C.R.S. § 37-92-305(9)(b). <br />B. Minimum Flow Necessary for Reasonable Recreation Experience <br />The Applicant seeks a decree for flow rates that vary in amounts between 120 cfs and 1700 <br />cfs in two-week intervals for the period between April 15 and October 31. Application at 2. <br />Several of the parties object that these flow rates are not the minimum for a reasonable recreation <br />experience within the meaning of C.R.S. § 37-92-103(10.3). <br />In considering the weight to be given to the language in C.R.S. § 37-92-103(10.3) defining a <br />"recreational in-channel diversion" as the "minimum stream flow...for a reasonable recreation <br />experience..." the court in the Gunnison RICD proceeding was reluctant "to usurp the Applicant's <br />determination of the size and scope of a RICD, subject to the traditional criteria of speculation and <br />waste." Findings of Fact, Conclusions of Law and Order of the Water Court Concerning the <br />Application for Water Rights of the Upper Gunnison River Water Conservancy District, Water <br />Division 4, Case No. 02CW038 at 19 (2003). Thus, in determining the scope of the RICD, the court <br />focused primarily on the applicant's intent to appropriate the water rather than applying the <br />language of C.R.S § 37-92-103(10.3) as a limitation. Specifically, the court stated, "To preclude an <br />Applicant from determining precisely the size and scope of any recreational in channel diversion <br />would appear to infringe on the Constitutional right to appropriate." Id at 19. The court then <br />determined that the standard that should apply to such appropriations is the traditional limitation <br />that there can be no speculative use or waste. Id. <br />Thus, the amount of water available for the Applicant's RICD water right is based primarily <br />on its intent. Despite the assertions by the Upper Yampa Water Conservancy District ("Upper <br />Yampa") and Morrison Creek Metropolitan Water and Sanitation District ("Morrison Creek") to the <br />contrary, see Upper Yampa Statement of Opposition at 2-3; Morrison Creek Statement of <br />Opposition at 3, it is clear that the Applicant intends to accommodate a wide range of uses, <br />including boating, kayaking, tubing, rafting, floating, canoeing, and other such general recreational <br />uses. See Application at 3. The uses for which the Applicant claims the RICD water right <br />constitute beneficial uses within the meaning of C.R.S. § 37-92-103(4), and because the requested <br />flow rates are necessary to accommodate such beneficial uses, they do not constitute speculative use <br />or waste. <br />2