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00CW259,Div. 5 <br /> Decree <br /> include the right to acquire and distribute water for recreational purposes. Furthermore, pursuant <br /> to C.R.S. § 31-35-402(1)(h) and (i) and C.R.S. § 32-1-1001(1)(d)(I), the District has independent <br /> statutory authority to enter into agreements with and for the benefit of customers within its <br /> service area to acquire, maintain, and administer water rights, facilities, and appurtenances. The <br /> District's Memorandum of Agreement with the Town of Vail falls within this statutory authority. <br /> The District has also completed the"first step" toward the conditional appropriation <br /> which requires an intent to appropriate accompanied by an open, physical demonstration of that <br /> intent. See, City of Thornton v. City of Fort Collins, 830 P.2d 915, 924-25 (Colo. 1992). <br /> F. Amount Claimed. The District requests conditional water rights at each of the <br /> structures of the Park in the quantities set forth below. <br /> Mar Apr May Jun Jul Aug Sep Oct <br /> 54 227 400 400 400 218 67 48 <br /> G. Diversion and Control. Approximately 600 cubic yards of rock were used to build <br /> the Park, which rock is anchored into the stream channel and the banks of the stream. The design <br /> capacity of the Park is 400 c.f.s. and the Park was constructed to that design capacity. All of the <br /> structures function at the optimal 400 c.f.s. level to concentrate and control the flow of water <br /> through a high flow channel, to create waves and jets of water, self-scouring pools, hydraulic <br /> holes, large changes in current direction, and other white-water features that are used by kayakers <br /> and other boaters for recreational purposes. At flows of 400 cfs the abutments and outer portions <br /> of the Park structures are not overtopped. The design and construction of the Park also allows <br /> passage by recreational water craft during periods of low flow rates, where passage was not <br /> possible prior to construction. The low flow passage is possible because the Park design diverts <br /> and concentrates all of the Gore Creek flow through a constructed low flow channel, rather than <br /> allowing the flow to be thinly dispersed across the natural stream channel. Although the structures <br /> were designed and built to look as natural as possible, the structures completely divert and control <br /> the streamflow. The structures produce whitewater features at flows in excess of 30 cfs. <br /> In view of the foregoing, the Court finds that the structures in the Park control, <br /> concentrate and direct the flow of water though the Park in a manner that constitutes a diversion <br /> under C.R.S. § 37-92-103(7)(2000). City of Thornton v. City of Fort Collins, 830 P.2d 915, 930 <br /> (Colo. 1992)("controlling water within its natural course . . . by some structure or device for a <br /> beneficial use thus may result in a valid appropriation");Decree of the District Court in and for <br /> Water Division No. 1 in Case No. 98CW448, dated June 13, 2001, regarding the Application for <br /> Water Rights of the City of Golden. Moreover, under the facts of this case, the Park structures <br /> accomplished this diversion in an efficient manner without loss or waste. <br /> khml000 -4- <br />