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. . . -6- Under this factor, the Board should consider whether there are any probable future junior upstream diversions for ~torage or direct use, and any probable upstream exchanges. RICD Rules 7.e.i and 7.3.ii. This has been addressed above, in the Compacts factor section, as these factors are related. I I With regard to t*s factor, the Staff adopts Mr. Bill Taggart's letter report, and incorporates it into this document by reference. Moreover, under this factor and the Board's RICD rules" the Board should consider the timds of day, and season of use, depth and flow rate, and with what frequency and duration the request~d flow rates exist. These issues are highlighted in: 1) several exhibits attached to the Staffs p~e-hearing statement; 2) the letter report of Bill Taggart; 3) the Staff I Recommendations, described below; and 4) the Division of Wildlife memorandum. I , I In particular, the ,RICD structures could be more efficiently designed such that conservation of water for use upstream of the RICD could occur. A blanket statement that more flow is better is I not acceptable under the, statutory framework for RICDs or under the maximum utilization factor. Rather, the Applicant must demonstrate how it has narrowly tailored the application flows to the recreational opportunities sought (that are required to be reasonable recreational opportunities). Without such an analysis maximum utilization has not been demonstrated. I , Based on the abo~e-referenced documents and the related analysis, the Staff recommends that the Board recomme~d that the water court deny. water right because, as a matter of fact, it does not promote maximum ~tilization. I I Staff Recommendations I I The Staff also includes the following comments with regard to possible recommendations of I the Board. The Gunnison decision expressly acknowledged that the Board, in addition to making findings of fact with reg~rd to the five required statutory factors, might also make recommendations to the water court. With ~that in mind, the Staff recommends that this Board make a number of I recommendations for the! reasons explained below. I , The Staffrecomnjlends that the Board recommend that the RICD claimed be denied because it is not for a beneficialll;se of water. Under the Gunnison decision, "unless the application is limited to the minimum stream 40w for a reasonable recreation experience in and on the water, it does not satisfy the beneficial use !requirement, and the application cannot be granted. Here, the Applicant's course designer has state~: "It is my opinion that both of the Boating Parks will function best at the flow rates claimed. Thes.e flow rates will turn the Boating Parks into a facility capable of holding whitewater events, and ~ill result in the highest amount of use ofthese Boating Parks for boating, kayaking, tubing, rafting,: floating, canoeing, and other such general recreation uses by the general public. The Boating Parks will be used by many boaters at the lower claimed flow rates. However, the quality of the Boating Park will be enhanced, and use will increase, as flows increase..." Lacy Report, page 1. As this aoard knows, whether the application requests water for a beneficial use is a determination to be made by the water court, but this Board can make a recommendation with regard to this issue. Moreover, it is specifically related to the maximum utilization factor. To determine whether a water right is fQr a beneficial use requires a two-pronged analysis-first is the recreational opportunities sought reasonable, second are the amounts sought the smallest acceptable or possible . ,.. I quantIty III a gIven case.: Flood P~otection. Water Project Planning and Finance. Stream and Lake Protection , Water Supply Protection. Conservation Planning