Answer Brief of the Colorado River Water Conservancy District

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? Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38) Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District Answer Brief of the Colorado River Water Conservation District Recommendations to the water court based on the "balancing factors." This requirement is the only authority delegated to the CWCB by SB 216. The statute provides in pertinent part that: (b) In determining whether the [CWCB] shall recommend that the water court grant, grant with conditions, or deny [an RICD] application, the [CWCB] shall consider the following factors and make written findings thereon: (I) Whether the adjudication and administration of the recreational in-channel diversion would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (II) The appropriate reach of stream required for the intended use; (III) Whether there is access for recreational in-channel use; (IV) Whether exercise of the recreational in-channel diversion would cause material injury to instream flow water rights appropriated pursuant to subsections (3) and (4) of this section; (V) Whether adjudication and administration of the recreational in-channel diversion would promote maximum utilization of waters of the state as referenced in paragraph (a) of subsection (1) of this section; and (VI) Such other factors as may be determined appropriate far evaluation of recreational in-channel diversions and set forth in rules adopted by the [CWCB], after public notice and comment. C.R.S. § 37-92-102(6)(b) (2003) (Emphasis added). Nothing in the "102(6)(b) factars" listed above, or anywhere else in SB 216, provides the CWCB with the responsibility or authority to judge whether the applicant is seeking a reasonable Page 16