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virtually the entire flow of the stream. 12 This appropriation clearly "vest[s] an absolute <br />monopoly in a single individual," Schodde, 224 U.S. at 121, 32 S.Ct. at 473, which <br />individual then may selectively subordinate that water right for a prIVA.. <br />In this case, for example., as part of the decree, the recreational instream flow water <br />rights would be subordinated to municipal and snowmaking uses. The Appellee agreed to <br />selectively subordinate these recreational instream flow water rights to "future municipal and <br />snowmaking rights" (i.e., on behalf of Vail Associates, Inc.). (v. X, p. 90; v. VII, p. 1529; v. <br />X, p. 93, 90 -92). Appellee could "move existing water rights upstream of the [whitewater] <br />park, where [Appellee] could make new diversions upstream of the park without interference <br />from the park." (v. X, p. 90; v. VII, p. 1529). Despite the fact that recreational instream <br />flows are non - consumptive (AB, p. 22), such unregulated water rights are open to extreme <br />abuses. The lack of regulation of recreational instream flows would result in the unfair, <br />speculative, and monopolistic practices predicted during the SB 212 legislative hearings. (v. <br />II, p. 416). <br />Similarly, because there was no preexisting law on what constitutes "waste" for <br />recreational instream uses, the water courts in Division 1 (Golden. and Division 5 (this case <br />and Breckenridge) issued conflicting rulings. In Division 5, the water court held in this case <br />that water would not be wasted at amounts between the maximum requested and the <br />minimum amount necessary to create whitewater features. (v. VII, p. 1531). Thus, any <br />12 In this case, the Applicant's appropriation for five of the eight months requested represents <br />the highest recorded flows for the eleven -year period of record used. (v. X, p. 117). <br />Typically, the high flows claimed would occur one time during the month. (Id.). <br />12 <br />