Findings of Fact, Conclusions of Law and Decree of the Water Court (2)

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JUN -07 -2002 16:07 FROM -DOL NATURAL RESOURCES OOCW259, Div. 5 Decree 3038663558 T -459 P.004 /018 F -678 The Park extends approximately 300 feet within the channel of Gore Creek_ Two maps depicting the location the Park and the above-referenced structures are attached hereto as Exhibits 1 and Exhibit 2, and incorporated herein by this reference. C. Source The source for the water claimed is Gore Creek, a tributary of the Eagle River. D. Date of Initiation of Appropriation October 10, 2000. The appropriation was initiated by formation of the requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including the commencement of the physical construction of the Park. All work in the stream channel was completed by November 29, 2000, E. InTcnt to Appropriate The Court finds that the District acting pursuant to the Memorandum of Understanding with the Town of Vail possessed the requisite intent to appropriate water for the amounts and time periods shown in paragraph 4F below for recreational purposes. The District and the Town of Vail entered into the Memorandum of Understanding to adjudicate, maintain, and administer the subject water rights for the Park, and specifically agreed as follows: "1. The Town [of Vail] hereby agrees to assume the liability and responsibility for, and pay the cost of construction, maintenance and operation of the Park. The Town [of Vail] also agrees to pay the legal, engineering and other costs associated with the adjudication of the water rights for the Park. 2. The District hereby agrees to use its best efforts to adjudicate, maintain and administer the necessary water rights for the Park. Notwithstanding the foregoing, the parties agree that the District shall administer any water rights it secures for the Park in such a manner that water for municipal and snowmaking purposes within the District's service area shall take precedence." (parentheticals added). The Court further finds that the District has authority to acquire recreational and piscatorial water rights for customers within its service area, including the Town of Vail. The powers of a water district are found in the Special District Act at C.R.S. § 32 -1 -1001 -1006, and in C.R.S. § 31 -35 -402. These express powers include the right to acquire water rights to serve water customers in a district's service area. C.R.S. § 32- 1- 1006(1)(c)(I) and - 1006(1)(e). In this regard, the District has direct statutory authority to appropriate all types of water rights, and even construct "water facilities" for the distribution of water "for the beneficial uses and purposes for which the water has been or may be appropriated." C.R.S_ § 31 -35- 401(7). Such powers kbMI000 —3—