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 The State believes that SB 216 gave the CWCB the absolute authority to determine the RICD flow rate claimed by an entirely different entity. Moreover, the State believes that the CWCB was provided with the authority to determine whether a recreational experience is reasonable. Neither premise is at all plausible. SB 216 did place significant limitations on RICD water rights but it cannot reasonably be interpreted to entirely remove the role of the water court or to take the appropriator's intent out of the hands of the appropriator and place it in the hands of the CWCB. The word "minimum" in SB 216 does not apply to a single reasonable recreation experience to be determined by the CWCB on a statewide basis because (1) RICDs are physically different than instream flow rights appropriated by the CWCB, and (2) SB 216 did not remove intent of the appopriator from the equation. Rather, the word "minimum" must be applied to the reasonable recreation experience that is sought by the applicant, and should be interpreted in light of traditional water law principles of avoiding waste and speculation. The water court properly applied a"preponderance of evidence" burden for the rebuttal of the CWCB's Findings of Fact. IV. ARGUMENT A. The water court did not hold that SB 216 infringes on the constitutional right to appropriate. The State and amici, the Rio Grande Water Conservation District, et al., misinterpret the water court's statement on the constitutional right to appropriate. The water court stated that "to preclude an Applicant from determining precisely the size and scope of any recreational in channel Page 4