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State and Division Engineers and the Colorado Water Conservation Board ( "CWCB ") <br />(collectively, the "State "), along with the Northern Colorado Water Conservancy District and its <br />Municipal Subdistrict ( "Northern"), challenged the District's application at trial principally on <br />policy grounds. Northern has no water rights on or downstream of Gore Creek. <br />In rendering its decision, the Water Court applied the same standards it would for any water <br />right, including whether there was a statutory "diversion" of water (which includes in- channel <br />control), and application to "beneficial use" (which includes concepts of reasonableness and <br />waste). Based largely upon uncontested facts, the Water Court held that the structures <br />comprising the Park controlled more than 400 c.f.s. for a beneficial use and were entitled to the <br />requested conditional water rights. The decreed amounts vary monthly depending upon water <br />availability, with a maximum of 400 c.f.s. from May to July, down to a minimum of 48 c.f.s. in <br />October. No flows were claimed from November through February due to icing of the Park <br />which is located at over 8,000 feet. The Water Court held "it was uncontested that the higher the <br />flows, the greater the Park usage and the attendant economic benefit," and the full amount of <br />water is put to beneficial use without waste, and is reasonable in terms of both the intended <br />beneficial use and the factual context of this appropriation on Gore Creek. <br />III. STATEMENT OF THE FACTS <br />A. Vail Intended to Develop a World Class Whitewater Park <br />Vail's local boating community and tourism board made a presentation to Vail's Town <br />Council about the importance of kayaking to the state's economy and asked the Town to consider <br />building a whitewater park. (v.X, pp.23 -24) .' The Town agreed to pursue the idea and, after <br />' To facilitate this Court's review, the complete quotes of the principal trial testimony cited in <br />the Statement of Facts are set forth in the attached App'x A. <br />Sb 1549 -2- <br />