Answer Brief of the Colorado River Water Conservancy District

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 1/1/3000
• Author: Peter C. Fleming, Kristin M. Gillespie
• Title: Answer Brief of the Colorado River Water Conservancy District
• Water Supply Pro - Doc Type: Court Documents

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Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38)
Case No. 045A44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District
Answer Brief ofthe Colorado River Water Conservation District
recreation experience. Nor does the statute direct the CWCB to determine what the minimum flow
for the recreational experience sought should be. Rather, those questions are properly reserved to
the water court based on the intent of the appropriator as reflected in the water court application and
any supporting evidence.
D. SB 216 contemplates that the Findings of Fact issued by the CWCB are rebuttable by
a preponderance of the evidence and that the CWCB's Recommendations are not
entitled to any presumptive validity.
1. SB 216 provides the CWCB with the authority to make presumptively valid
tindings only on certain limited factual issues.
SB 216 does not provide the CWCB with the broad powers it seeks in this appeal. Its powers
are limited to making presumptively valid factual findings only on the matters identified in the SB
216 balancing factors. C.R.S. §§ 37-92-102(6) and 37-92-305(13). To the extent the CWCB's
Findings of Fact can be interpreted to include findings on matters not set forth in the balancing
factors, no presumption of validity can be applied. The CWCB's recommendations are not entitled
to any presumption of validity. Id.
2. A preponderance of the evidence is the correct burden to rebut the CWCB's
Findings of Fact.
The statute does not specify the applicable burden of proof to rebut the CWCB's Findings
of Fact. The water court therefore properly used the "preponderance of the evidence" standard - the
customary standard in water rights matters where a statutory presumption arises under the 1969 Act.
For example, the 1969 Act provides that failure to use a water right for a period of ten years creates
a rebuttable presumption of abandonment of the right. C.R.S. § 37-92-402(11). The statute does
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