Prehearing Statement of Upper Gunnison River Water Conservancy District and Exhibits A-F

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case law, not merely factual findings. Likewise, many of the items the CWCB is directed by the RICD rules to consider in making its findings and recommendation to the water court require similar legal interpretation and application of legal principles. Therefore, the District identifies the following mixed questions of law and fact. 1. Whether the District's Application Meets the Requirements of a Recreational In- Channel Diversion as Defined by S.B. 216. District's Position A "recreational in- channel diversion" is defined at C.R.S. § 37- 92- 103(10.3) as the "minimum stream flow as it is diverted, captured, controlled and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district, for a reasonable recreation experience in and on the water." The CWCB must thus find that (1) the District is a local government entity authorized to seek an RICD right; (2) the flow sought is the minimum stream flow necessary for a reasonable recreation experience in and on the water, and (3) the structures divert, capture, control and place to beneficial use the flow sought between specific points of diversion defined by physical control structures. a. The District is a local government entity entitled by S.B. 216 to appropriate an RICD It is undisputed that the District, as a lawfully- constituted water conservancy district pursuant to C.R.S. § 37 -45 -101 et seq., is an entity entitled to appropriate an RICD. b. The Control Structures Designed for the Gunnison Whitewater Course Divert, Capture, Control and Place to Beneficial Use Water Between Specific Points The whitewater course structures designed by Gary Lacy of Resource Engineering & Planning are constructed of large natural stone held together by concrete grout. They span the entire channel of the Gunnison River in the RICD reach, and are anchored well into the bed and banks of the river. (Exhibit C at 2, 3; testimony of Gary Lacy.) According to Mr. Lacy, "[t]hese structures are designed to divert and control the flow at specific points to create surf waves, rodeo holes, standing waves, eddies, and jets of water for squirt boating." (Id.) The structures divert, capture and control water at all of the flow rates for which the District's RICD is sought. (Id.) To date, decrees in three cases in two different water courts have found that whitewater course structures similar to those designed for the Gunnison Whitewater Course do indeed divert, capture and control water between specific points. See, Findings of Fact, Conclusions of Law and Decree of the Water Court, Application for Water Rights of the Town of Breckenridge, Case No. OOCW281 (Water Division No. 5), dated June 5, 2002, in which the court held that whitewater structures similar to those