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amount necessary to create whitewater features. (Breckenridge Decree). Thus, any amount of <br />water below that required to create whitewater features was wasted because that amount does <br />not meet the intended use. 13 In contrast, the Division 1 water court in Golden did not hold <br />that the water below that amount necessary to create whitewater features was wasted. These <br />inconsistent rulings concern the legal definition of waste and are not mere "factual <br />differences" as the Appellee asserts. (AB, p. 24). Because there are two definitions of <br />"waste," one of these holdings is in error. Thus, this Court must determine what constitutes <br />"waste" for purposes of recreational instream flows. <br />The water courts also had no legal guidance on whether to place limits on the time of <br />day or the months that the Applicant may call for water. Thus, the Division 1 water court in <br />Golden and the Division 5 water court differ in the interpretation of reasonableness with <br />regard to times. Here, the court allowed a call on virtually all of the stream's water 24 hours <br />a day, while the Division 1 water court held that there is a substantial difference in <br />recreational uses before and after dark, and limited that appropriation to the actual diurnal <br />and monthly use "at given points_ of time." Golden Decree, Exhibit F attached to Opening <br />Brief, p. 4). Further, the decree from the Division 5 water court in this case limited the <br />months of use based upon waste, while the Division 1 water court imposed no limits on the <br />13 Appellee argues that it is "inaccurate" to state that the water right was limited to amounts <br />above 100 c.f.s. because Appellee can call junior water rights if that would provide 100 c.f.s. <br />(AB, p. 9). This argument is without merit because when flows are under 100 c.f.s. (after all <br />possible calls), the Appellee still has no water right because such rights are "wasted." <br />Similarly, in the Gunnison case, the applicant cannot call the water right if that call would <br />not produce flows above 250 c.f.s. (the amount of water granted). (Exhibit 3). <br />13 <br />