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 Decree 3038663558 T -459 P.008 /018 F -678 absolute and conditional, that are decreed for structures between the Park and the state line. Due TO the upstream location, the use of water for recreational purposes at the Park does not reduce the supply of water available for those existing water rights or future appropriations in any manner. In fact, the water may continue to be used and reused several times between the Park and the state line. Moreover, the Upper Colorado River Compact allocates the amount of entitlement to the Colorado River flows among the upper basin states based on consumptive use. Since the recreational and piscatorial use of Gore Creek at the Park is non - consumptive, it will not add to Colorado's consumptive use quota. M. Administration The water rights for the Park can be administered using the existing gages downstream of the Park- These gages include the '(J. S_ Geological Survey's "Gore Creek above Red Sandstone Creek at Vail" gage and the "Middle Creek near Minturn" gage. By utilizing these gages and accounting for stream flow gain from intervening drainage areas, the water rights for the Park can be administered in the same way all other water rights are administered - in priority. Notwithstanding, should the state and division engineer reasonably require the installation and maintenance of another meter, guage or measuring device to administer the water rights granted herein, such may be required pursuant to C.R. S. § 37-92 - 502(5)(a)- CONCLUSIONS OF LAS Jurisdiction Timely and adequate notice of the filing of this Application was given as required by law and this Court has jurisdiction over this Application and over all parties affected thereby, whether or not they have chosen to appear. Diversion Struglures Pursuant to C.R.S. § 37 -92- 103(7)(2000), a diversion of water may include "controlling water in its natural course or location by means of a— structure or device." The dam structures and flow deflector control devices which constitute the Park are such diversion structures or devices. See, City of Thormorl v. City of Fort Collins, 830 P.2d 915 (Colo. 1992)- R.i t of Appropriation The District's constitutional right to appropriate a new water right in accordance with Colorado law may not be denied or limited based upon the public trust doctrine, or similar policy restraints purportedly rooted in concern for the quantities that should be left for future water users. The water rights decreed herein, by virtue of the express language of Senate Bill 216, CRS. § 37- 92- 102(6)(d), is exempt from review under the provisions of that bill, as the Application herein was filed prior to January 1, 2001. khmI000 —7—