Laserfiche WebLink
Supreme Court, State of Colorado (Appeai 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 />are fundamentally different than instream flows appropriated by the CWCB to protect the <br />environment, the State's analogy to the instream flow program is misplaced. No justification <br />therefore exists to limit an RICD to an absolute minimum flow for a single uniform "reasonable" <br />recreation experience. Instead, the water court must first look to the recreation experience that is <br />sought by the appropriator. The experience sought must be reasonable, but it does not have to be <br />uniform throughout the state. <br />C. The legislature reserved to the water court the authority to determine the minimum <br />stream flow for the reasonable recreation experience sought by the appropriator. <br />The State ignores the intent of the appropriator and argues that the CWCB has the exclusive <br />authority to determine a single, uniform minimum flow rate for recreation experience determined <br />by the CWCB to be reasonable. See State's Opening Brief, p. 19. SB 216 does not support this <br />"one-size-fits-all" approach to RICDs. If the legislature had intended to remove the appropriator's <br />intent from the equation and to provide the CWCB with the authority to determine what constitutes <br />a reasonable recreation experience and what the minimum flow rate for that experience should be, <br />it would have said so in express terms. Instead, the primary reason the legislature enacted SB 216 <br />was to operate as a kind of a"checks and balances" on RICD claims. (R., v. III at 945.) SB 216 <br />therefore includes a list of "balancing factors" that are intended to protect against potentially <br />mischievous water right filings by entities or individuals seeking to usurp the entire water <br />development capacity of a river basin. C.R.S. §37-92-102(6)(b) (2003). SB 216 requires that the <br />CWCB apply the "balancing factors" to the claimed RICD and make Findings of Fact and <br />Page 15