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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 BrieS of the Colorado River W ater Conservation District <br />court clearly acknowledged that SB 216 might require a reduction in the flow rate claimed, if <br />warranted by the evidence. For example, the court indicated its willingness to reduce the claimed <br />flow rate if the evidence showed that the applicant requested too much water, stating in the ruling <br />that: <br />The Court concludes that the scope of the project, subject to waste, speculation and <br />the foregoing criteria [i. e., the S.B. 216 balancing factors], are (sic) up to Applicant. <br />CWCB may make a finding that the quantity applied for is excessive, but did not do <br />so here. <br />(R., v. III at 1108-09.) <br />The court also stated that it "will not second guess the Applicant in its requested amount." <br />(R., v. III at 1106.) (Emphasis added). This statement does not mean that the court refused to reduce <br />the amount sought by the Upper Gunnison District, but only that the court based its overall analysis <br />on the flow rate requested by the Upper Gunnison District. In fact, the court's ruling suggests that <br />a reduction was a distinct possibility if the weight of evidence had demonstrated that the amount <br />claimed violated any of the SB 216 balancing factors. <br />This Court concludes that the CWCB has not found nor does the Court, that at any <br />of the levels requested by the Applicant this RICD will impair Colorado's ability to <br />fully develop and put to beneficial use its compact entitlements, injure any CWCB <br />instream flow right, is inconsistent with maximum utilization or will not divert, <br />capture or control the requested water. <br />(R., v. III at 1107.) <br />The water court therefore assumed (properly so) that a reduction in the claimed flow rate for <br />the RICD might be required if the CWCB actually had made a Finding of Fact or produced sufficient <br />evidence at trial that the amount claimed runs afoul of SB 216. As noted by the water court in its <br />Page 6