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effort to ignore the statutory definition of a diversion; and a mischaracterization of the evidence <br />considered by the Water Court. <br />On the issue of control, the Park consists of large stone and cement structures that divert <br />flows back and forth across the re- created river channel and create the intended whitewater <br />features by_ concentrating the claimed amounts through boat chutes designed into the structures. <br />On reasonableness of the claimed flows, the evidence was uncontested that the higher the flows, <br />the greater the beneficial use, and the greater the economic benefit. Moreover, given the Park's <br />location, virtually all of the water is already being called for and diverted downstream by senior <br />water rights. Breckenridge simply added a new, non - consumptive beneficial use on to that <br />water, while protecting its investment from upstream exchanges that could de -water the Park. <br />The underlying premise of the State's opposition is that Breckenridge was decreed too <br />much water for recreation and such rights should be limited to preserve water for speculative <br />consumptive uses that may arise in the future. Contrary to the State's argument, there is no legal <br />precedent for treating recreational use as a second class water right. No other water right is <br />limited in quantity, when such a limit will restrict its beneficial use and economic value. No <br />theory of waste or duty of water requires a reduction in beneficial use. Nor has Colorado ever <br />embraced the theory that the beneficial use of a present water right should be denied or limited to <br />leave water for future use -- an argument that is particularly inapplicable given that <br />Breckenridge's use is non - consumptive and the. water is immediately re- diverted downstream. <br />The State essentially espouses the view that recreation is a lesser form of water use and that <br />different standards and limitations should be imposed. The Water Court did not err in rejecting <br />that argument as recreation is an acknowledged beneficial use and the law does not discriminate <br />among different beneficial uses. <br />Sb1546 -6- <br />