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Upper Gunnison River Water Conservancy District <br />02CW038 <br />CWCB to make findings and a recommendation to the water court, with its factual findings being <br />presuxnptive on the court.13 <br />SB 216 did not change the way in which the court should consider appropriation or beneficial <br />use requirements. Rather, SB 216 revised the definition of "beneficial use" to explicitly include <br />recreational in-channel diversion applications, not to limit them or treat them differently. ("Beneficial <br />use" includes "the use of that amount of water that is reasonable and appropriate under reasonably <br />efficient practices to accomplish without waste the purpose for which the appropriation is lawfully <br />made and, without limiting the generality of the foregoing, ... includes the diversion ofwater by a <br />[designated local government entity] for recreation in-channel diversionpurposes." C.R.S. § 37-92- <br />103(4) (emphasis added.)) Likewise, the definition of "recreational in-channel diversion" is the <br />"min.imum stxeam flow as it is diverted, captured, controlled, and placed to beneficial use between <br />specific points defined by physical control structures pursuant to an application filed by a... water <br />conservancy district for a reasonable recreation experience in and on the water." C.R.S. § 37-92- <br />103(10.3) (emphasis added). <br />13 Senate Bi1101-216, fmal version attached to Applicant's Closing Brief as Exhibit A. <br />CWCB Executive Director Rod Kuharich explained that the "arbitrary and capricious" standard <br />would not be applied to the CWCB's factual fmdings, and that "[t]he recommendations have a <br />rebuttable presumption, which the burden of proof is not a very stringent burden of proof." <br />-9-