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Upper Gunni,son River Water Conservancy District <br />02CW038 <br />recreational ir-channel diversion is not the lcind of attempt to command the entire flow of the river <br />and p.revent u)stream development that the SB 2161egislafure was concerned about. <br />As with the failure of proof with respect to the impacts identified by Mr. Seaholm, the State <br />has failed to ;;how that the impacts identified by Mr. Slattery cause impairment, eit:her under the <br />"adverse impact" or the "weaken, make worse" definition. As to "adverse impact," the evidence <br />showed that rnany, if not all, of the water rights affected by the District's water right are already <br />affected by otlier conditions in the Upper Guxuiison River basin. Furkher, a water right that is affected <br />or impacted by another water right has the ability to develop an augmentation plan. .Augmentation <br />plans promote: maximum utilization of the water of the state. There is simply no evicience that any <br />impact causec'. by the District's recreational water right is "adverse" either by itself or when compared <br />with akeady e.xisting impacts. <br />The court should also note that, even ifthe proposed water right would impar.'r "Colorado's <br />abilityto develop a portion of450,000 AF available for compact development upstrearn ofthe RICD" <br />and "Colorado's ability to use water under the 60,000 AF subordination or out of the `marlcetable <br />flow hydropower rights should be simulated as placing a call. As ainatter of law, Ms. Seaholm is <br />simply wrong; on this point, as discussed in Applicant's Closing Brief. See, Board ojFCounty <br />Comm'rs v. C'rystal CreekHomeowners'Assoc., 14 P.3d at 335, 336, 337. When t:hose water <br />rights are simulated as placing a call, Mr. Seaholm agrees with Mr. Slattery's impact analysis <br />(subject to his comments on the averaging technique.) <br />-28-