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Reply Brief; Case No. 04SA44
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Reply Brief; Case No. 04SA44
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Last modified
1/26/2010 4:41:38 PM
Creation date
7/29/2009 12:57:14 PM
Metadata
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Template:
Water Supply Protection
File Number
8230.2F
Description
Colorado Supreme Court Appeal
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
10/15/2004
Author
Ken Salazar, Susan Schneider
Title
Reply Brief; Case No. 04SA44
Water Supply Pro - Doc Type
Court Documents
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Snyder Family Trust v. Adams County Bd. of Equalization, 835 P.2d 579, 581 (Colo. App. <br />1992); Arapahoe Partnership v. Board of County Commissioners, 813 P.2d 766 (Colo. 1990). <br />The Appellee argues that the Legislature gave "the CWCB an advisory role." (Brief, <br />p. 21). The legislative history shows otherwise. During the hearings on SB 216 when the <br />CWCB's role was discussed, Senatar Perlmutter explained that a"rebuttable presumption is <br />stronger than an advisory suggestion" by the CWCB. (Exhibit L, Sen. Perlmutter, p. 3). The <br />CWCB determinations would be "taken by the courts as true and accurate and appropriate, <br />somebody then comes in, has the burden, the burden then is on anybody else to try to <br />overturn what the CWCB has said." Id. "So you made it harder, so it is not advisory, you <br />made it harder for the objectors to complain about the CWCB suggestions or decisions." Id. <br />(emphasis ad'ded). "This is not an advisory kind of report given by the CWCB, but it is, it has <br />a lot of evidentiary weight that the court will take as true and accurate unless even greater <br />evidence comes by the other folks." Id. <br />Here, because the Findings and Recommendations are supported by the record, they <br />should be upheld. The Appellee argues that "[p]lainly and simply, 250 c.f.s. provided only <br />minimal boating experiences such as safe boat passage and novice paddling technique." <br />(Brief, p. 25). . This contention is contrary to the statements of the Appellee's chief witness, <br />who admitted repeatedly that: "The Whitewater Park will attract many boaters at 250 c.f.s. <br />and above," including experienced kayakers. (Exhibit B; v. V, p. 177; v. VII, pp. 221-222). <br />The Appellee's Manager provided an initial recommendation of minimum stream flows of <br />250 to 500 c.f.s. (Exhibit N). The State's expert testified-a minimum flow for a reasonable <br />17
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