Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005

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constitutes a diversion under C.R.S. § 37- 92- 103(7)(2004), at all flaw rates up to the maximum amounts claimed in paragraph 6.% above. See also City of Thornton v. City of Fort Collins, 830 P.2d 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 "); See also Decree of the District Court, Water Division No. 1 in Case No. 98CW448, dated June 13, 2001, aff'd by operation of law, State Engineer v. City of Golden, 69 P.2d 1027 (2003); Decree of the District Court, Water Division No. 5, Case No. OOCW259, dated June 5, 2002, aff'd by operation of law, State Engineer v. Eagle River Water & San. Dist., 69 P.3d 1028 (2003); Decree of the District Court, Water Division No. 5 in Case No. OOCW281, dated June 5, 2002, aff'd by operation of law, State Engineer v. Town of$reelienridge, 69 P.3d 1028 (2003). Accordingly, the Court finds that the Boating Park structures are capable of efficiently diverting and controlling the water flows without waste for the claimed amounts. h. Beneficial Use. The LRoatin2 Park RICD is decreed for onl the following recreational uses in and on the Yampa River: boating, kayaking, inner tubing, rafting, jg&dI canoeing. Recreation is a beneficial use of water in Colorado. C.R.S. § 37- 92- 103(4). L The Boatina Park RICD Does Not Involve Waste. Waste involves diverting more water than one can put to a beneficial use or commanding unutilized water in order to divert the needed amount. That situation does not exist in this instance. The Court finds that the ILwol Boating Park mss+ Istructures were designed for an optimal flow of at least 1400 cfs. It is at those higher flows where the Boating Park turns into a competitive facility for events, river festivals, and use by the general public. Since the requested water rights (up to 1400 cfs and greater amounts) have or will be put to beneficial use, there is no waste. The City is entitled to build a competitive facility capable of being used by beginner, intermediate and advanced boaters and obtain water rights to protect that investment. j. Minimum Flows for Reasonable Recreation Experiences. Pursuant to C.R.S. § 37- 92- 103(10.3) and Colorado Water Conservation Bd v. Upper Gunnison River Water Conservancy Dist, 109 P.3d 585 (Colo. 2005)(1-lereafler "Gunnison "), a RICD is limited to the minimum flow for a reasonable recreation experience in and on the water. The "reasonable recreation experience" required for a RICD as noted at section 37 -92- 103(10.3) necessarily depends upon the intended recreational use. The CWCB's own rules recognize this fact by defining "reasonable recreation experience" in the context of the "specific recreational activity for which the water right is being _sough t." Rule 4.0., 2 C.C.R. 408 -3 (2003) (emphasis added); see also Gunnison at 594. The City's purpose in constructing the Boating Park was to create a recreational amenity that would draw boaters and spectators to the region. Specifically, the Boating Park was built to generate greater tourist revenue outside the ski season by meeting the recreational boating and tubing demands of the City's citizens and ph0841 - #2 -5-