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Ic s <br />Upper Gunnison River Water Conservancy District <br />02CW038 <br />malcing certain findings and a recommendation to the water court.' SB 216 does not authorize the <br />CWCB to deternune the flow rate an appropriator may have decreed for a recreational in-channel <br />diversion. Nor does it allow the CWCB to make recommendations based on concepts foreign to the <br />legislative scheme of the Water Right Determination and Administration Act of 1969 or to malce <br />presumptively valid determinations on legal issues. The State aslcs this court to give the CWCB an <br />adjudicatory role not too far from the one specifically denied to it by the General Assembly. <br />The CWCB's recommended flow rate of 250 cfs should not be adopted by the water court. <br />It is not a"finding of fact" that is presumptive on the court. Rather, as the evidence presented to this <br />court clearly demonstrates, the flow rates sought by the District are the proper measure of this <br />recreational in-channel water right. They are reasonable and appropriate in light of the intended <br />purpose, they can be diverted (or controlled) under reasonably efficient practices, they will maximi7e <br />the District's beneficial use and promote maximum utilization, and they do not impair Colorado's <br />ability to develop and place to consumptive beneficial use its compact entitlements.2 <br />' The fmdings that both the CWCB and water court must make with respect to <br />recreational in-channel diversions are set forth at C.R.S. § 37-92-102(6)(b) and are herein referred <br />to as the "102(6) factors." <br />2 As set forth in the Applicant's Closing Brief, all parties agree that the other 102(6) <br />factors do not provide a basis to limit or deny the District's application. <br />-3-