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

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C. The Flows Sought by the District are the Minimum Stream Flows for a Reasonable Recreation Experience in and on the Water The confusion surrounding the concept of "beneficial use" as applied to RICD water rights is evident when determining whether RICD flows sought by an applicant are indeed the minimum stream flows for a reasonable recreation experience. "Reasonable recreation experience in and on the water" is not defined or quantified by S.B. 216, and there is as yet no guidance from the courts. The concept must be evaluated, therefore, from two perspectives, the time - honored concept of beneficial use, and the intent and purpose of S.B. 216. "Recreation" is defined as "refreshment of strength and spirits after work." Merriam Webster Collegiate Dictionary, Tenth Ed. (1996). Recreation is clearly a subjective concept, and even the addition of "reasonable" in S.B. 216 cannot limit the concept to a single experience or even a single sort of experience. Therefore, there cannot be only one flow rate in an RICD reach which provides a "reasonable recreation experience in and on the water" for all recreators. Boaters have a variety of skill levels and interests, and different sorts of vessels provide different recreation experiences at different flow rates. (Exhibit Q Testimony of Gary Lacy and Mark Gibson.) A "reasonable recreation experience" is thus properly provided by an amenity that caters to a wide variety of users. This allows for a variety of flow rates in the whitewater course. Moreover, assuming that S.B. 216 is fundamentally designed to require recreational in- channel water rights to be balanced against other more traditional uses of water, what is in fact the "minimum stream flow necessary for a reasonable recreation experience in and on the water" depends in part on how that balance is struck. Again, this allows for variations in flows, because available supplies of water for both recreational and traditional water uses vary seasonally. In fact the District Board of Directors engaged in just such an analysis when appropriating water rights for the Gunnison Whitewater Park. The District appropriated flows ranging from 270 cfs to 1500 cfs. These flow rates are all within the design parameters of the whitewater course, which is designed to channel and control to provide a variety of recreation experiences to differing skill levels at flows ranging from 250 cfs to 2000 cfs. (See Exhibit C.) Because the District does not anticipate that the whitewater course is likely to be used to any significant extent between October and April, no appropriations were made for those months. Future development was also considered, both by limiting the months for which appropriations were made, and by appropriating flows which, although sufficient to provide a reasonable recreation experience for a variety of uses and skill levels, are significantly less than the average historical streamflow. (See Exhibit A, Figure 4; Testimony of Greg Peterson.) T is exactly what S.B. 216 contemplates and authorizes in permitting local government entities to appropriate "the minimum stream flow for a reasonable recreation experience in and on the water." on