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I. STATEMENT OF THE ISSUES <br />Is there evidence in the record to support the Water Court's factual findings that: (1) the <br />Town of Breckenridge met the requirements of section 37- 92- 305(9)(b) to obtain conditional <br />water rights; (2) Breckenridge's Whitewater Park structures concentrate, direct, and control water <br />in the Blue River in a manner that constitutes a statutory diversion under section 37 -92- 103(7), <br />and the decreed water rights for these structures are not an in- stream flow; and (3) the amounts <br />decreed can and will be applied to a beneficial use without waste and are reasonable in the <br />context of the Blue River, Breckenridge's intent, and downstream calls. <br />II. STATEMENT OF THE CASE <br />The Town of Breckenridge constructed fifteen control structures in the Blue River to create <br />a whitewater park adjacent to the Town's recreation center. These highly engineered structures, <br />comprising the Breckenridge Whitewater Park ( "Park "), modify the existing channel of the Blue <br />River to divert, control, and concentrate flows to create recreational whitewater features. The <br />Park has already become a great success. Despite being only partially built during its first year <br />of operation (summer of 2001), the Park has already generated substantial revenue for the <br />Breckenridge economy and is an important recreation amenity designed to draw tourists to the <br />Town during the non -ski season. However, the future success and related economic benefits are <br />directly dependent upon maintaining adequate flows. <br />Breckenridge sought to protect its investment by seeking conditional water rights for eight <br />originally constructed structures (Phase I), and seven structures subsequently constructed in the <br />fall of 2001 (Phase II). The only actual water user that opposed the Town's application was the <br />City of Colorado Springs who agreed to the entry of a decree substantially similar to that entered <br />by the Water Court. Notwithstanding the admitted lack of injury to any water rights, the State <br />and Division Engineers and the Colorado Water Conservation Board ( "CWCB ") (collectively, <br />Sb1546 -1- <br />