Stipulation and Agreement and Decree Case No. 02CW038

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Upper Gunnison lZiver Water Conservancy L?istrict Case No. 02CW038 ]?age 2 1. The above-captioned case was tried in the Water C;ourt, Water Division No. 4, from September 15 - 19, 2003. The Court's decree was entered December 26, 2003, and CWCB and the Engineers appealed. Following entry of the Supreme Court's ruling in Colorado Water Consey-vation Board v. Upper Gunnison River Water Conservaracy District, 109 P.3d 585 (Colo. 2005) on March 14, 2005, the matter was remanded to the Water Court , with instructions to remand to the CWCB for revised findings consistent with the Supreme Court's opinion. In addition, the water court was directed to make a determination that the water right sought by the District meets the definition of a"recreational in-channel diversion" pursuant to C.R.S. § 39-92-103(10.3). 2. The District, CWCB and the Engineers have reached a settlement in this matte;r that eliminates the need for further proceedings before CWCB. Pursuant to C.R.S. § 37-92-102(6)(a), the CWCB recommends that the water court grant the application for recreational in-channel diversion water rights, subject to the terms and conditions of the proposed decree attached hereto as Exhibit A, which exhibit is incorporated herein by this reference. For purposes of settlement of this case only, CWCB makes the following findings as required by C.R.S. § 37-92-102(6)(b): (n the adjudication and administration of the recreational in-channel diversion claimed herein, subject to the terms and conditions of the proposed decree in attached Exhibit A, will not impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (I[) the stream reach is appropriate for the intended use of the recreational in-channel diversion claimed herein; (III) there is access for recreational in-channel use of the recreational in-channel diversion claimed herein; (N) exercise of the recreational in-channel diversion claimed herein will not r,ause material inj ury to instream flow water rights appropriated pursuant to C.R. S. § 37-92-102(3) anci (4); and (V) adjudication and administration of the recreational in-channel diversion claimed he-.rein, subject to the terms and conditions of the proposed decree in attached Exhibit A, will promote maximum utilization of waters of the state of Colorado as referenced in paragraph (a) of C.R.S. § 37-92-102(1) or as discussed in broader terms in case law. The CWCB hereby reports these finclings to the water court for review pursuant to C.R.S. § 37-92-305(13). 3. The foregoing recommendation and findings (1) are made as a settleinent and compromise of this case; (2) are unique to the Gunnison River and Gunnison River basin and the location of this recreational in-channel diversion; and (3) are not precedent for or binding upori the CWCB in any other case not involving this particular recreational in-channel diversion. 4. The CWCB and Engineers hereby stipulate to entry of a decree herein in the form attached hereto as Exhibit A, or other form that is no less restrictive upon the District than the proposed decree attached as Exhibit A, and agree that, upon entry of the decree by the Water Court, Water Division No. 4, they will be bound by said decree. 5. The District agrees that it will not seelc a decree with terms and conditions that are inconsistent with this Stipulation and Agreement, and that upon entry of the decree herein, the District will be bound by said decree. The CWCB and Engineers shall remain on the mailing list in