Response of Colorado River Water Conservation District to Position Statement of Applicant

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District Court, Water Division 4, Co[orado Case No. 02CV138; Apptication of Upper Gunnison River Water Consarvancy District, [n Gunnison County, Colorado CRWCD'S Response to Applicant's Pnsition Statement Page 2 of 3 record of the CWCB's informal hearing on the subject application. The CWCB can easily apply the compact impairment and maximum utiIization balancing factors without resorting to a timely and expensive second hearing procedizre because the facts presented at trial are the best evidence available of the C.R.S. § 37-92- 102(6)(b)(I) and (V) balancing factors as applied to the stipulated claiins of the Upper Gunnison District. C. The River District believes that, as a general matter in R.ICD proceedings, the role of the CWCB is ta apply the S.B. 01-216 balancing factors to the claims presented by the application. If, at the time the CWCB hearing is held, a stipulation has been entered that constrains the applicant's claims, then the CWCB shou.ld consider the terms of the stipulation. However, the CWCB is not required to continually re- examine the application and hold repeated hearings each time an applicattt limits its cIaims in the course of settlement discussions with other parties. L)oing so would result in an absurd circular parade where all parties, would be forced into a new CWCB hearing process every time that the applicant stipulated with an objector. Such an interpretation would interfere with judicial economy because it would substantially obstruct settlement negotiations. The water courts are capable of considering the CWCB's findings, hearing any new evidence presented at trial, and applying the balancing factors to the applicant's claims, as limited by:;tipulation with other parties. In the present case, that is exactly what happene<i. The Upper Gunnison District's application is constrained by a September 4, 2003, stipuIation entered with the River District. The stipulation was not executed w]Zen the CWCB hearing was heId on September 10, 2002. However, the effective ternls of the agreement documented by the stipulation, and the impact of those, terms on the claims of the Upper Gunnison District were presented to the CWCB ( as refIected by the CWCB hearing transcript, which was an exhibit at trial in this case). More importantly, the Stipulation and its impact on the Upper Gunnison District's application were fully considered at trial in this matter. Resp°ctfully submitted this 31 S` day of May, 2005. /S/* .. ( Pefer C. Fleming, 420805 ? . Kirstin E. McMillan, #339$9 '----1??•. Attorneys for the Colorado River T3tater Conservation District