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 Dec w 3038663558 T -459 P- 005/018 F -678 include the right to acquire and distribute water for recreational purposes. Furthermore, pursuant TO C.R.S. § 31- 35- 402(1)(h) and (i) and C.R.S. § 32- 1- 1001(1)(d)(I), the District has independent statutory authority to enter into agreements with and for the benefit of customers within its service area to acquire, maintain, and administer water rights, facilities, and appurtenances. The District's Memorandum of Agreement with the Town of Vail falls within this statutory authority. The District has also completed the "first step" toward the conditional appropriation which requires an intent to appropriate accompanied by an open, physical demonstration of that intent. See, Ci y of Tho n v. CiV of Fort Collins 830 P.2d 915, 924 -25 (Colo. 1992). F. Amount Claimed The District requests conditional water rights at each of the structures of the Park in the quantities set forth below. Mar Apr May run Jul Aug Sep Oct 54 227 400 400 400 218 67 48 G. Diversion and Cont Approximately 600 cubic yards of rock were used to build the Park, which rock is anchored into the stream channel and the banks of The stream. The design capacity of the Park is 400 c.f.s. and the Park was constructed to that design capacity. All of the structures function at the optimal 400 c.f.s. level to concentrate and control the flow of water through a high flow channel, to create waves and jets of water, self - scouring pools, hydraulic holes, large changes in current direction, and other white -water features that are used by kayakers and other boaters for recreational purposes. At flows of 400 cfs the abutments and outer portions of the Park structures are not overtopped. The design and construction of the Park also allows passage by recreational water craft during periods of low flow rates, where passage was not possible prior to construction. The low flow passage is possible because the Park design diverts and concentrates all of the Gore Creek flow through a constructed low flow channel, rather than allowing the flow to be thinly dispersed across the natural stream channel. Although the structures were designed and built to look as natural as possible, the structures completely divert and control The streamflow. The structures produce whitewater features at flows in excess of 30 cfs. In view of the foregoing, the Court finds that the structures in the Park control, concentrate and direct The flow of water though the Park in a manner that constitutes a diversion under C.R.S. § 37- 92- 103(7)(2000). Ci y of Thornton v. City of Fort Collins, 830 P2d 915, 930 (Colo_ 1992)( "controlling water within its natural course ... by some structure or device for a beneficial use thus may result in a valid appropriation "); Decree of the District Court in and for Water Division No. 1 in Case No. 98CW448, dated June 13, 2001, regarding the Application for Water Rights of the City of Golden. Moreover, under the facts of this case, the Park structures accomplished this diversion in an efficient manner without loss or waste. xh,i000 —4—