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<br />. <br /> <br />. <br /> <br />. <br /> <br />- 2 - <br /> <br />Pursuant to the recent Supreme Court decision involving an application for an RICD water <br />right by the Upper GUrnlison River Water Conservation District ("Gunnison decision"), the CWCB <br />was granted initial, fact-finding authority on the five enumerated factors as applied strictly to the <br />Applicant's claimed stre~m flows and intended recreation experience. The CWCB's role was <br />characterized as an impdrtant role that is consistent with the Board's other statutory mandates. The <br />I <br />Gunnison decision provi'ded that the General Assembly intended for the CWCB to "analyze the <br />application purely as submitted by the applicant." The CWCB is limited to review of an application <br />on its face; nothing in either statutory provision allows the CWCB to look beyond the stream flow <br />claimed or the recreatiotl experience intended by an applicant. The Gunnison decision fhrther <br />I <br />provided: "Unless the qWCB reviews the application purely as submitted, including an applicant's <br />plans and intent for the *e ofthe water right, the CWCB's findings of fact and recommendation are <br />meaningless once the application moves from the CWCB proceedings to the adjudication in the <br />water court.... If in considering an applicant's claimed stream flows for compliance with the five <br />I <br />statutory factors, the CWCB determined, for example, that the RICD would impair the availability of <br />upstream consumptive u~es of compact-entitled water, or that the RICD would not conserve or <br />efficiently use the claim~d water, thereby promoting maximum utilization of Colorado's available <br />water, then the Board could recommend to the water court that the application be denied.." <br />Consequently, the Staff'~ analysis focuses on the Application as submitted to the water court, not on <br />the flow amounts as congeded through negotiation process and described in the Applicant's pre- <br />hearing statement. Otheiwise, the CWCB's findings of fact and recommendations could/be rendered <br />meaningless once the ca~e proceeds before the water court. <br />I <br />Following is the Staff's analysis regarding the findings of fact related to the five articulated <br />I <br />factors as well as several'recommendations, as permitted under Senate Bill 216. <br />I <br />i <br /> <br />Staff Report Re!!ardin2 the Five Statutory Factors <br /> <br />I <br />1. Whether the adjudication and administration of the RIen would impair the ability of <br />Colorado to fully develop and place to consumptive Beneficial Use its Compact Enltitlements. <br />1 <br />, <br /> <br />Pursuant to SB 21~, the Board must consider the RICD's effect on Colorado's abili~y to develop <br />its compact entitlements. Again the Gunnison decision is instructive: "Whether a RlCD shields waters <br />from a consumptive use tqat would otherwise be available under a particular compact is a factor for the <br />CWCB to consider in reaching its recommendation." The fact that the basin is over-appropriated does <br />not end this inquiry. The: more pertinent question is are there times when free river conditions exist in <br />the basin and, more speci~cally, are there times where there are free river conditions that exist upstream <br />ofthe RlCD, at times when the RlCD water right would not be satisfied, and thus, the RlCD water right <br />would call water down tIn10ugh the RICD reach, and shielding waters from a consumptive use that <br />would otherwise be avail~ble under the Arkansas River Compact. <br />I <br />I <br />The Arkansas Rivyr Compact was adopted in 1949 and is unlike any other compact to which <br />Colorado is a party, conta~ning no fixed delivery obligation and placing strict limits on new <br />development both upstream and downstream of John Martin Reservoir ("JMR"). Kansas is entitled to <br />40% of the native water stpred at JMR. (not including water attributable to pre-compact rights stored <br />under the Pueblo Winter Water Storage Program). Colorado is prohibited from new or expanded uses <br />that would deplete useabld Stateline flows from the level in existence when the Compact was <br />negotiated; in effect, JMR :functions as if it held a 1949 storage right. When JMR's conservation <br />Flood Ptotection. Water Project Planning and Finance. Stream and Lake Protection <br />: Water Supply Protection. Conservation Planning <br />I . <br />