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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 River Water Conservation District <br />Page 7 of 11 <br />CWCB had applied those two statutory criteria to the flow rates claimed by the Applicant, it is <br />arguable that its findings would be entitled to some presumptive validity, subject to rebuttal by a <br />preponderance of the evidence at the trial.' The CWCB then could make recommendations to the <br />water court related to the specific findings. For example, if the CWCB had determined that the peak <br />flow rate requested by the Applicant in this case would impair compact development, the CWCB <br />would then be entitled to make a reconnmendation to the water court of a flow rate that it believed <br />would not impair compact development. (Of course, the recommendation would not be entitled to <br />any presumptive validity). However, because the CWCB failed to make findings on the specific flow <br />rates requested by the Applicant, the Court should look to the evidence presented by the Applicant, <br />which clearly shows that the flow rates requested will not impair compact development and that the <br />RICD will promote maximumutilization. Even assuming, for the sake of argument, that the CWCB's <br />findings on compact impairment and maximum utilization are entitled to presumptive validity, the <br />evidence presented hy the Applicant outweighed the evidence presented hy the CWCB so <br />substantially, that the CWCB's fmdings of fact were sufficiently rebutted under even the strictest <br />standard of review. <br />III. THE RICD WII.L NOT RESULT IN COMPACT IMPAIRMENT. <br />The CWCB's expert, Mr. Randy Seaholm, applied a severely strict standard in determining <br />3The River District supports the argument asserted by Applicant that the CWCB's findings concerning <br />compact impairment and maximum utilization are ultimate conclusions involving mixed questions oflaw and fact that <br />exceed the scope of the CWGB's delegated authority. Furthermore, the River District agrees with the Applicant that <br />the CWCB's pre-trial motions effectively waived its right to argue that compact impairment and maximum utilization <br />do not involve ultimate questions of mixed findings of law in fact. See ApplicanYs Closing Brief, pp. 27-29.