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• ?? <br />In addition, S.B. 216 requires a balancing between the needs of the appropriator <br />and other more traditional uses of water, as demonstrated by the legislative history of S.B. <br />216.2 Therefore the "minimum stream flow necessary for a reasonable recreation <br />experience in and on the water" depends in part on how that balance is struck. Again, <br />this allows for variations in flows, because available supplies of water for both <br />recreational and traditional water uses vary seasonally. In the Pueblo RICD case, the <br />CWCB recognized that varying flow rates may properly be appropriated for recreation <br />uses pursuant to S.B. 216. (Findings of Fact and Final Recommendation of the Colorado <br />Water Conservation Board to the Water Court, filed in Application for Water Ri ts of <br />Pueblo a Munici_pal Corporation, Case No. O1CW160, Water Division No. 2. Finding <br />No. 7 reads, "The RICD will be for the minimum stream flow necessary to provide a <br />reasonable recreation experience in and on the water if those stream flow amounts are as <br />follows: 500 cfs during June and July, 250 cfs during April, May and August, and 100 <br />cfs during the remainder of the year.") <br />The CWCB Staff contends that the District's analysis of average flows at the <br />Gunnison Gage is flawed because it assumes average flows of 50 cfs to the West Branch, <br />but did not deduct the entire decreed right for the Kelmel-Owens No. 1 Ditch, which <br />diverts from the West Branch, nor the 75 Ditch (also known as the Valco Ditch) which <br />diverts just above the first structure of the whitewater park, and has senior decrees for <br />approximately 48 cfs. The District's consulting engineer, Jim Slattery, will testify that his <br />deduction of 50 cfs from the gage flows to determine average flows in the reach is a <br />reliable calculation even though the 75 Ditch is not specifically mentioned. Mr. Slattery <br />will testify that deduction of 50 cfs from the gage readings is more than sufficient because <br />the average historic use of the water rights decreed to the Kelmel-Owens Ditch No. 1 and <br />the 75 Ditch is less than 50 cfs. <br />As the CWCB Staff is well aware, the Colorado Supreme Court has made clear <br />that in determining availability of watez for a junior conditional appropriation, the <br />assumption that senior decreed water rights will divert to the full extent permitted under <br />their decrees is "contrary to experience and ... improbable." In the Matter of the <br />Applications for Water Rights of the Board of County Commr's of the County of <br />Arapahoe, 891 P.2d 952, 958 (Colo. 1995) (herein referred to as "Arapahoe I"). Rather, <br />the Supreme Court concluded that the junior appropriator is entitled to base its <br />availability analysis on the current conditions on the river. Id. The District did exactly <br />that. (Testimony of Greg Peterson; Kathleen Curry.) <br />Since a variety of flow rates may be appropriated for recreational in-channel <br />diversions under S.B. 216, and since the District has in fact done so, after carefully <br />Z See, for example, Transcript of Hearing before House Agricultural Committee, May 7, 2001,in which <br />Rep. Spradley stated, "S.B. 216 is designed to ensure that decrees for recreational in-channel diversions is <br />recognized by the Colorado Supreme Court and the City of Thornton v. the City of Ft. Collins cases are <br />integrated into the state's prior appropriation system in a manner which appropriately balances the need for <br />water based recreational opportunities with the ability of Colorado citizens to divert and store water under <br />our compuct entitlement for more traditional consumptive use puiposes." <br />5