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Upper Gunnison River Water Conservancy District <br />02CW038 <br />argument, that there would be no compact impairment at 500 cfs. Even if there is an implication that <br />compact impairxnent is found at flow rates in excess of 250 cfs, and maximum utilization is not <br />promoted at these rates, there is no "factual finding" to which presumptive weight must be given. <br />The findings of impairment and failure to promote maximumutilization at flow rates in excess of 250 <br />cfs are mixed fmdings of fact and law, just as were the fmdings of non-impairment, and promotion <br />o fmaximum utilization. In any event, the evidence shows that the rates claimed by applicant pronzote <br />inaximum utilization and do not impair compact development. <br />To the extent there are any factual fmdings in the CWCB's recommendation to which a <br />rebuttable presumption applies, the standard of overcoming such a presumption is a"preponderance <br />of the evidence" standard, not a"clear and convincing" standard as the CWCB wrongly argues. <br />"[T]he status and strength of a rebuttable presumption vary according to the force of the policies <br />which motivate a court or a legislature to create it and ... there are therefore no universal rules as <br />to the anlount of evidence necessary to overcome a rebuttable presumption. Tafoya v. Sears Roebuck <br />& Co., 884 F.2d 1330, 1336 (10"' Cir. 1989). However,"[r]ebuttable presumptions in the civil law <br />are normally overcome by a preponderance of the evidence." Id. at 1337. <br />SB 216 does not specifically state that any standard other than a preponderance of the <br />evidence standard is applicable. The status and strength of the rebuttable presumption in C.R.S. § <br />37-92-305(13) can be measured by the fact that the legislature explicitly did not want the "arbitrary <br />-31-