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III. SENATE BILL 216 DID NOT GIVE THE CWCB THE AUTHORITY TO <br />DICTATE A MINIMUM RICD FLOW RATE. <br />The State argues that the "clear mandate" of SB 216 was "to authorize the CWCB, not <br />the applicant, to determine whether the amount claimed is the minimum stream flow necessary <br />for a reasonable recreation experience." (State at 19, 15-19.) To the contrary, there is nothing in <br />SB 216 that grants this authority to the CWCB. The only factors the CWCB was granted <br />authority to consider are set out in § 37-92-102(6)(b), and the authority to recommend a flow <br />rate is simply not among the five factors specifically identified in that section. <br />Even the catch-all sixth factor in § 37-92-102(6)(b) only allows the CWCB to consider <br />"such other factors as may be determined appropriate for evaluation of recreational in-channel <br />diversions and set forth in rules adopted bv the Board, after public notice and comment." C.R.S. <br />§ 37-92-102(6)(b)(VI) (emphasis added). The rules that the CWCB adopted pursuant to that <br />provision, and how they evolved, contradict the State's argument that SB 216 mandated a <br />minimum flow rate to be imposed by the CWCB independent of the appropriator's intended <br />purpose for a particular boating park. <br />The CWCB's RICD rules were initially proposed so that a reasonable recreational <br />experience was limited to mere safe boat passage. See Draft RICD Rules (Appendix Tab D). <br />Similar to what it now argues in this appeal, these draft rules directed the CWCB to recommend <br />against any RICD claim if, among other limits, the claimed amount was more than necessary "to <br />transport the recreational craft without harm or imminent threat of harm to the recreational <br />participants," or more than "the amount necessary for boat passage through the stream segment." <br />Draft Rules § 12(f)(iii, v). However, the final rule that was promulgated took a very different <br />approach and, consistent with the language of SB 216, directs the CWCB to recommend against <br />Tm 1650 8