Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2

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tubing, rafting, an canoeing. Recreation is a beneficial use of water in Colorado. C.R.S. § 37 -92- 103(4). j. The Boating 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 j1"� Boating Park +vft�s+ 1 struetu res werej. designed for an optimal flow of 1700 cfs. It is at those higher flows where the Boating Park tuns into a competitive facility for events, river festivals, and use by the general public. Since the requested water rights (up to 1700 cfs) 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. k. 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)(hereafter "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 sought." 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 visitors, and creating a venue for special events. The Court finds that the City has claimed flow rates in amounts and at time intervals to meet these reasonable objectives The flow rates claimed and decreed herein were developed by the City as part of a multi- year, intensive planning process for its Yampa River corridor. City Staff testified that the City devoted thousands of man hours, and hundreds of thousands of dollars over many years to identify and establish suitable recreation activities with corresponding stretches of river in order to develop quality recreational opportunities for many different recreational users. Given its location, the Boating Park focuses use of the Yampa River in a manner consistent with the City's overall river management objectives, as explained in its river use ordinances and its comprehensive Yampa River Management Plan adopted in 2003. The flow rates claimed and decreed herein were developed by the City and it Citizens Advisory Committee out of that intensive planning process, and were carefully tailored to be the minimum necessary to meet the City's objective for the Boating Park section of its Yampa River corridor. The CWCB argues that a certain "Table 2" of "Recommended Flows" for "Yampa River Recreational Uses" prepared by the City demonstrates that the flow rates are not the minimum amounts for a reasonable recreation experience. The Court disagrees. The Court has reviewed phO83941