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designed for the Gunnison Whitewater Course "control, concentrate and direct the flow of <br />water through the Park in a manner that constitutes a diversion under C.R.S. § 37 -92- <br />103 (7)," finding that <br />"[a]pproximately 1,400 cubic yards of rock and 80 cubic yards of cement grout <br />were used to build the Phase 1 structures, and approximately 1,200 cubic yards of rock <br />and 80 cubic yards of grout were used to build the Phase II structures....All of the <br />structures function at the optimal 500 c.f.s. level to concentrate and control the flow of <br />water through a high flow channel, to create waves and jets of water, self - scouring pools, <br />hydraulic holes, large changes in current direction, and other white -water features that are <br />used by kayakers and other boaters for recreational purposes.... Although the structures <br />were designed and built to look as natural as possible, the structures completely divert <br />and control the stream flow." Id. at 4 -5. <br />The Division 5 Water Court made similar findings and conclusions in the <br />Findings of Fact, Conclusions of Law and Decree of the Water Court issued in the <br />Application of the Eagle River Water and Sanitation District, Case No. OOCW259 (Water <br />Division No. 5), dated June 5, 2002, at 4. Likewise, the Decree in Application of City of <br />Golden, Case No. 98CW448 (Water Division No. 1) finds that the structures of the <br />Golden whitewater course, (also designed by Gary Lacy and constructed of stone and <br />grout) operate to "control, concentrate and direct the flow of water through the Course in <br />a manner that constitutes a diversion pursuant to C.R.S. § 37 -92- 103(7)." Id. at 6. <br />Moreover, the Colorado Supreme Court held in City of Thornton v. City of Fort Collins, <br />830 P.2d 915, 932 (Colo. 1992), that a boat chute and fish ladder constructed into an <br />existing dam controlled and concentrated the flow of water to serve their intended <br />purposes. <br />Once it is determined that the water is diverted by an appropriate entity for <br />recreational in- channel diversion purposes, the language added by S.B. 216 to C.R.S. § <br />37- 92- 103(4) indicates that the water is by definition beneficially used. This leads to a <br />curious and somewhat circular argument about whether beneficial use is defined by the <br />standard definition as set forth in C.R.S. § 37 -92- 103(4) ( "the use of that amount of water <br />that is reasonable and appropriate under reasonably efficient practices to accomplish <br />without waste the purpose for which the appropriation is lawfully made, and ... includes <br />... the diversion of water by a county, municipality, city and county, water district, water <br />and sanitation district, water conservation district, or water conservancy district for <br />recreational in- channel diversion purposes "), or whether the concept of beneficial use is <br />wholly subsumed within the definition of a recreational in- channel diversion found at <br />C.R.S. § 37 -92- 103(10.3), as discussed below. By either formulation, the District's <br />water rights will be beneficially used. <br />w <br />