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

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JUN-07 -2002 16:08 FROM -DOL NATURAL RESOURCES OOCW259, Div. 5 D=cc 3038663558 T-459 P.006 /018 F -678 Accordingly, the Court finds that the three Park structures are capable of efficiently diverting and controlling the water flows without waste for the claimed conditional amounts as identified in the monthly chart in paragraph 4(F) above. The structures do not create whitewater features at flows below 30 cfs. H. Beneficial Uses Recreation is a beneficial use of water in Colorado. The Court finds that the water claimed conditionally in the amounts described in paragraph 4F above can and will be beneficially used for recreational boating purposes. C.R,S. § 37- 92- 103(4)(2000). Moreover, the Town of Vail has and will continue to derive substantial economic benefits from the recreational use of the Park, particularly during the spring and early summers months when there are higher flows in the Park. These higher flows attract the greatest number of users, spectators and competitive events. These users and spectators spend many thousands of dollars in the Town of Vail, especially when competitive events are held_ This is particularly important to a municipality such as the Town of Vail whose economy is based on tourism and where such tourism is traditionally at its lowest during these "shoulder months." In addition, competitive whitewater events are scheduled to occur at the Park beginning in 2002. Therefore, the evidence was uncontested that the economic value to the Town of Vail will continue to increase as the Park attracts increasing numbers of boaters and spectators from the region and out of state. It was uncontested that the higher the flows, the greater the Park usage and the attendant economic benefit. The testimony demonstrated that when flows are at the 400 c.f S. level, the Park is accessible to intermediate, advance - intermediate, expert, and even world class boaters. Intermediates use the easier parts of the Park, while more experienced boaters utilize more challenging structures in the Park. The evidence also demonstrated that the ability to continue to attract competitions depends on the possible availability of high flows in the 400 c.f.s. range. Furthermore, the usage of water by the Park is non consumptive and available for reuse and diversion downstream of the Park. For all of the foregoing reasons, the Court concludes that the flows of 30 cfs up to 400 c.f.s. can and will be put to beneficial use and are not wasted. The Court recognizes that the District claimed amounts of water less than 400 c.f s. in some months of the years as identified in paragraph 4F. The testimony also demonstrated that the water diverted and controlled by the Park at these lower flows is also beneficially used for recreational purposes. Therefore, the Court further finds that all amounts less than the 400 c.f s. but more than 30 c.fs. are also put to beneficial use and are not wasted_ The Court also finds that the water controlled by the Park structures is incidentally used for piscatorial purposes. However, the Court concludes that there is insufficient evidence to support an appropriation for that purpose separately and apart from the operation of the whitewater park and that the application for piscatorial rights should be denied.