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I. STATEMENT OF THE ISSUES <br />Is there evidence in the record to support the Water Court's findings that: (1) the Eagle <br />River Water and Sanitation District ( "District ") met the requirements of section 37 -92 -305 (9)(b) <br />to obtain a conditional water right; (2) the Vail Whitewater Park structures concentrate, direct, <br />and control water in Gore Creek in a manner that constitutes a statutory diversion under section <br />37 -92- 103(7), and the decreed water rights for these structures are not an in- stream flow; (3) the <br />amounts decreed can and will be applied to a beneficial use without waste and are reasonable in <br />the context of Gore Creek, the District's intent, and downstream calls; and (4) the District has the <br />legal authority to appropriate the subject water right. <br />II. STATEMENT OF THE CASE <br />The Town of Vail constructed three control structures in Gore Creek to create a whitewater <br />course in the heart of Vail's Gore Creek Promenade pedestrian area. These highly engineered <br />structures, comprising the Town of Vail Whitewater Park ( "Park "), modify the existing channel <br />of Gore Creek to divert, control, and concentrate flows to create recreational whitewater features. <br />The Park has already become a great success. In its first summer of operation, it hosted the Teva <br />Whitewater Festival which was broadcast nationwide on FOX Sports Net. The Park has already <br />generated substantial revenue for the Vail economy and is an important recreation amenity <br />designed to draw tourists during the non -ski season. The future success of the Park, and the <br />related economic benefits, are directly dependent upon maintaining adequate flows. <br />Vail sought to protect its investment by seeking conditional water rights for the three <br />structures comprising the Park. It entered into a Memorandum of Understanding ( "MOU ") with <br />the District, Vail's sole water provider, wherein the District agreed to apply for and administer <br />the water rights for the Park. Notwithstanding the admitted lack of injury to any water rights, the <br />Sb1549 -1- <br />