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District Court, Water Division 4, Colorado <br />Case No. 02CW38; Application of Upper Gunnison River Water Conservancy District <br />Closing Brief of the Colorado Itiver Water Conservation District <br />Page 6 of 11 <br />the measure of any other type of water right. Santa Fe Trail v. Simpson, supra at 53, 55. The clear <br />intent of Senate Bill 216 therefore is that the CWCB should apply the statutory "balancing" factors, <br />listed above, only to the water right claimed by the applicant. <br />Contrary to this fundamental precept, the CWCB ignores the intent of the appropriator and <br />argues that strict objective criteria should be applied to determine a minimum flow rate that <br />constitutes a reasonable recreatimnal experience. Based on the Findings of Fact and <br />Recommendations submitted to the Court in this case, the CWCB apparently believes that the Senate <br />Bill 216 "balancing" factors should be applied to an objective minimum flow rate at which white <br />water features begin to appear and not to the amounts claimed by the Applicant to fulfill its intended <br />purposes. Senate Bill 216 does not support the CWCB's "one-size-fits-all" approach. In fact, <br />nothing in Senate Bill 216 provides the CWCB with any responsibility or authority to determine what <br />constitutes a reasonable recreation experience. Nor does the statute direct the CWCB to determine <br />what the minunum flow for that recreational experience should be. Rather, those questions are <br />properly reserved to the water court based on the intent of the appropriator as reflected in the water <br />court application and any supporting evidence. <br />B. Application of the Statutory Criteria in this Case. <br />The second, third, and fourth Senate Bi11216 factors (access, reach, and impact on CWCB <br />instream flow rights) are not contested by any party, including the CWCB. The only disputed issues <br />therefore are whether the claimed RICD impairs the ability of Colorado to develop its compact <br />entitlement and whether the claimed RICD promotes the doctrine of maximum utilization. If the