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Upper Gunnison River Water Conservancy District <br />02CW038 <br />CWCB in fact defines "maximuxn utilization." Rather, Rule 7(e) sets forth some items the CWCB <br />may, but need not consider, in determining whether maximumutilization is promoted by a proposed <br />recreational in-channel water right. These items do not define maximumutilization; theypresuppose <br />a concept of maximum utilization against which these items may be analyzed. <br />Nevertheless, the State urges this court to "uphold" the CWCB's "presumprively valid <br />finding" that a flow rate of 250 cfs for the Gunnison Whitewater Park promotes maximumutilization <br />of the waters of the state. The State offered no evidence to support this fmding, and items that may <br />be considered, as set forth in Rule 7(e), are not referred to in the CWCB's Findings and <br />Recommendation. Instead, the CWCB, having determined from Gary Lacy's report and statements <br />at the hearing, that the "minimum flow for a reasonable recreation experience" is 250 cfs, simply <br />concludes, without analysis, that this flow rate promotes maximum utilizatio,n. What the CWCB has <br />actually done is employ some legal concept of maximum utilization in order to determine that <br />maximum utilization is promoted at the rate of 250 cfs. While the District agrees that a flow rate of <br />250 cfs promotes maxirnum utilization, this flow rate is not sought by the District. The CWCB has <br />made no recommendations about the flow rates sought by the District, or any other flow rates. <br />appropriateness of the rules themselves. <br />-21-