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Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38) <br />Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District <br />Answer Brief of the Colorado River Water Conservation District <br />diversion would appear to infringe on the constitutional right to appropriate." (R., v. III at 1106.) <br />Findings of Fact, Conclusions of Law and Order, p. 19. The State and amici take this statement out <br />of context and run with it, using scare tactics to twist the interpretation of the water court's ruling <br />into one that would allow unfettered recreational instream water rights to proliferate unchecked <br />throughout Colorado. <br />1. The water court properly applied SB 216 and acknowledged that SB 216 might <br />require a reduction in the claimed flow rate. <br />SB 216 provides a series of checks and balances for the adjudication of an RICD water right. <br />First, SB 2161imits those who may appropriate an RICD to certain local governments. C.R.S. § 37- <br />92-103 (10.3) (2003). Second, the Act confirms that the water right is limited to the minimum stream <br />flow for the reasonable recreation experience sought by the appropriator. Id. Third, it provides that <br />the CWCB may hold a hearing to apply the so-called "SB 216 balancing factors" (e.g., appropriate <br />access, compact impairment, and maximum utilization) (a.k.a. the "Section 102(6)(b) balancing <br />factors") to the claimed RICD. C.R.S. § 37-92-102(6) (2003). The CWCB may then issue Findings <br />of Fact on whether the claimed RICD violates any of the SB 216 balancing factors. The Findings <br />of Fact are presumptively valid, subject to rebuttal at trial. Id.; and C.R.S. § 37-92-305(13) (2003). <br />Finally, the water court separately applies the SB 216 balancing factors and may reduce the claimed <br />flow rate on its own initiative. C.R.S. § 37-92-305(13) (2003). <br />In this case, the water court carefully analyzed and applied all of the constraints imposed by <br />SB 216 to the RICD flow rate claimed by the Upper Gunnison District. (R., v. III at 1107-09.) The <br />Page 5