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District Court, Water Division 4, Colorado <br />Case No. 02CW38; Application of Upper Crunnison River Water Conservancy I)istrict <br />Closing Brief of the Colorado River Water Conservation District <br />Page 4 of 11 <br />entities or individuals seeking to usurp the entire water development capacity of a river basin. Senate <br />Bill 216 requires the CWCB consider the "balancing" factors and submit to the water court findings <br />of fact on whether the claimed RICD: <br />1. would impair the ability of Colorado to fully develop and place to consumptive <br />beneficial use its compact entitlements; <br />2. is for the appropriate stream reach for the intended use; <br />3. has suitable access; <br />4. would cause material injury to instream flow water rights; and <br />5. would promote maximum utilization of waters of the state. <br />C.R.S. § 37-92-102(6).2 <br />To the extent the statutory criteria listed above can be determined to be purely factual, the <br />CWCB's findings on those matters are entitled to a presumption of validity, subj ect to rebuttal at trial. <br />C.R.S. § 37-92-305(13). The CWCB is also authorized by Senate Bill 216 to issue recommendations <br />to the water court on the same subject matters, but the CWCB's recommendations are not entitled <br />to any presumption of validity or other deference by the water court. <br />A. The Measure of a RICD Must First be Based on the Appropriator's Intent. <br />The CWCB fundamentally misinterprets Senate Bill 216 in this case because it failed to apply <br />the statutory criteria to the specific water right claimed by the Applicant. Contrary to the assertion <br />ZThe CWCB also is authorized to consider such other factors as maybe determined appropriate for evaluation <br />of RICDs as set forth in rules adopted by the CWCB. C.R.S. § 37-92-102(6).