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Upper Gunni,son River Water Conservancy District <br />02CW038 <br />Though the District agrees that there is no compact impairment at that flow rate, the problem <br />is that 250 cf;; is not the flow rate claimed by the District; SB 216 does not impose the objective <br />standard ("minimum stream flow for a reasonable recreation experience") on which. the CWCB's <br />recommendation is based; and the CWCB's determination regarding lack of compact impairment at <br />this flow rate is an application of the law concerning the impairment standard, not a:finding of fact <br />to whichprestunptive effect applies. Thus, the CWCB's recommendation concerning lack of compact <br />impairxnent a1. 250 cfs is irrelevant. <br />The S tate also argues that the proposed recreational in-channel diversion (presuxnably at the <br />flow rates achially requested in the application) "would impair Colorado's abilityto develop a portion <br />of 450,000 AF available for compact development upstream of the RICD" and that "the proposed <br />RICD will al;;o impair Colorado's ability to use water under the 60,000 AF subordin.ation or out of <br />the `marketalle pool' in the Aspinall Unit upstream of the RICD." (Answer at 18.) In support of <br />its legal argurlent concerning impairment, the State cites Randy Seaholm's testimony at pages 28-29 <br />and 46. Id. ]n those portions of the transcript, however, Mr. Seaholm uses the terrn "impact", not <br />"impair" or "adverse impact". See 9/18/03 Seaholm trial transcript (Ex. N ofAnswer) at 29 ("And <br />what I wanted to do was just to lund of loolc through a short period of record... and. to just identify <br />-24-