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B. Minimum Flow Necessary for Reasonable Recreation Experience <br />The Applicant seeks a decree for flow rates that vary in amounts between 270 cfs and <br />1500 cfs in two week intervals for the period between May 1 and September 30. Applicant's <br />Prehearing Statement at 2. Notwithstanding the Staff's assertion to the contrary, see Staff <br />Prehearing Statement at 3, the Applicant has provided evidence that the flow rates sought are the <br />minimum necessary for a reasonable recreation experience. The statement of Gary Lacy <br />indicates that though the course will function best at high flow rates, the course will provide a <br />recreation experience and will function as designed at flow rates between 250 cfs and 2000 cfs. <br />Lacy Report at 1, 3. Recognizing that a"reasonable recreation experience" is a flexible and <br />subjective concept, the Applicant has sought a variety of flow rates within this range. The <br />variation in flow rate accommodates a diversity of circumstances, including user types and water <br />availability, see Applicant's Prehearing Statement at 6, an approach the CWCB implicitly <br />endorsed in the Pueblo RICD proceeding in recommending that the water court decree a range of <br />flow rates. See Findings of Fact and Final Recommendation of the Colorado Water <br />Conservation Board to the Water Court, Water Division 2, Case No. O 1 CW 160. <br />Despite the evidence provided by the Applicant, in its prehearing statement the Staff <br />states that its examination of the course supports a finding that 1500 cfs is not the minimum flow <br />necessary for a reasonable recreation experience. StaffPrehearing Statement at 3. Other than <br />that it "examined" the course, the Staff provides no basis or support for its conclusion. <br />Similarly, Natural Energy Resource Co. ("NERC") blankly contends that the proposed water <br />right is "excessive for a reasonable recreational experience." NERC Prehearing Statement at 1. <br />These unsubstantiated contentions should be afforded little weight relative to the evidence <br />provided by the Applicant, in the form of Mr. Lacy's opinion, that the flow rates it seeks are the <br />minimum necessary for a reasonable recreation experience.2 <br />H. STATUTORY FACTORS <br />Under C.R.S. 37-92-102(6)(b), the CWCB is required to make findings of fact with <br />respect to a number of factors. The parties disagree as to the proper findings of fact on several <br />factors. <br />A. Consumptive Use of Entitlement <br />The Staff, NERC and the Colorado River Water Conservation District (the "River <br />District") argue that the RICD water right would impede Colorado's ability to fully develop and <br />put to beneficial consumptive use its compact entitlements. StaffPrehearing Statement at 4-6; <br />NERC Prehearing Statement at 1; River District Prehearing Statement at 2-3. Faced with <br />2 In its prehearing statement, TU also urged the CWCB to refrain from recommending that ihe Applicant not be <br />allowed to call upstream junior rights holders wiless doing so will result in complete satisfaction of the Applicant's <br />water righG In this discussion, TU mistakenly stated that in the Breckenridge whitewater park case, the Division 5 <br />Water Court awarded less than 140 cfs for three months though it had found 104 cfs to be the minimum necessary to <br />create whitewater features. While TU acknowledges this error and retracts that statement, it adheres to its position, <br />as enunciated in its prehearing statement, that [he Applicant should be permitted to make, and have the division <br />engineer enforce, a call when doing so would benefit the recreational purposes for which the Applicant has claimed <br />a water right. <br />3