Staff's Recommended Findings of Fact and Recommentdations

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i. The nature and extent of the ISF water rights do not serve as a basis to recommend denial of the RICD application; ii. There is an ISF water right held by the CWCB for 55 (May 1-July 31) and 52 (August 1-September 30), and 50 cfs (October 1-April 30), but these water rights do not serve as a basis for denying the RICD application. The Board notes, however, that the RICD and the ISF water rights should not be stacked (ar tabulated separately) as a matter of fact and law; iii. Based on information provided by the Applicant, Trout Unlimited, and the DOW, the Board finds that the RICD would not negatively impact the natural envirorunent for which the ISF was decreed as long as the Applicant includes the term and condition regarding ramping rates included in the Proposed Decree; and, iv. The Board finds that the RICD could affect the natural environment that the ISF protects during the construction process, so the Board conditions this factor on the Applicant consulting with the DOW and the CWCB before and during the construction of the RICD structures to assure that the RICD construction will not injure the natural environment that the ISF protects. e. The Board must consider whether the adjudication and administration of the RICD would promote maximum utilization of the waters of the State. The Board makes the following findings about this RICD from May 1 through September 30, wherein 100 cfs (Level One Flows) is claimed: i. The Board finds that there are probable future upstream junior appropriations for direct diversion or storage. Examples are specifically described in the pre-hearing statements filed by Denver, Colorado Springs Utilities, the Town of Dillon, Summit County, and the Colorado River Water Conservation District. More specifically, the location of Old Dillon Reservoir, and Dillon Reservoir indicate how this RICD could affect upstream junior appropriations for direct diversion or storage. However, given the 100 cfs flow amount sought for daylight hours, and given the imposition of triggers whereby the Applicant will not seek to enforce this water right if it will not produce at least 90 cfs, the Board finds that there is adequate opportunity to allow upstream junior appropriations for direct diversion and storage such that the RICD will promote maximum utilization of the waters of the State. However, in order to further promote maximum utilization, the Board recommends that the water court include a"dry year provision" such that the RICD shall not be in effect during any month for which the Natural Resources Conservation Service reports in its Colorado, Basin Water Supply Outlook Reports for its "most probable forecast" (50% chance of exceedance) for the flows into Dillon for April-July ("Forecast") that is less than 70% of average. (In the event this report and/or index ceases to be published, the Applicant and the CWCB will agree upon a substitute stream flow forecasting source or method that will provide substantially the same information.) The Forecast of in any year shall determine the effectiveness of the RICD for the summer period and holiday weekends. For example, if the Forecast for April-July is less than 70% of average; then the RICD shall not be in effect for the summer season, including the holiday weekends; 3