Laserfiche WebLink
<br />Upper Gunnison River Water Conservancy District <br />02CW038 <br />and capricious" review standard of the Administrative Procedures Act, as was proposed in the initial <br />versions of SB 216. See Transcript ofMay 7, 2001 Hearing at p. 4(remarks of CWCB Director Rod <br />Kuharich: "The recommendations have a rebuttable presumption, which the burden of proof is not <br />a very stringent burden of proof. It's not the way the bill started out originally, which was arbitrary <br />and capricious.") <br />A preponderance of the evidence standard is also consistent with the burden of proof that <br />applies to presumptions in other water-related matters. See, e.g., Danielson v. Jones, 698 P.2d 240, <br />248-249 (Colo. 1985) (a preponderance of the evidence applied to the applicant's burden of <br />overcoming the presumption that was accorded the State Engineer's fmding of material injury <br />concerning proposed well). See also C.R.S. § 37-92-602(3)(c)(In(B) (explicitly applying a <br />preponderance of the evidence standard to rebutting certain presumptions concerning a relocated <br />well). See also C.R.S. §§ 37-92-602(3)(b)(II)(A); 37-92-305(6)(a) and (b), which contain no <br />provisions for a burden of proof other than the usual civil burden of preponderance of the evidence. <br />IV. The District has met traditional conditional water riQhts requirements. <br />A. Intent and Overt Acis. The District effected an appropriation of water by <br />demonstrating a specific plan and intent to divert the claimed amounts of water at the claimed time <br />periods and to apply such water to beneficial use, specifically recreational in-channel boating use. <br />C.R.S. § 37-92-103(3)(a); City ofAspen v. Colorado River Water Conservation Dist., 696 P2d 758, <br />-32-