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"expertise" with instream uses and in looking at future concerns; and because members are from <br />each drainage, the Board is inherently objective and balanced in nature (Exhibit K, pp. 37-40) 14 <br />For all of these reasons, this Court should give effect to the clear mandate in SB 216 to <br />authorize the CWCB, not the Applicant, to determine whether the amount claimed is the <br />minimum stream flow necessary for a reasonable recreation experience. <br />IV. THE PRESUMPTIVELY VALID CWCB FINDINGS AND <br />RECOMMENDATIONS MUST BE UPHELD UNLESS THERE <br />IS CLEAR AND CONVINCING EVIDENCE THAT THEY ARE <br />IN ERROR. <br />A. The CWCB Findings and Recommendations must be <br />upheld unless there is clear and convincing evidence <br />that they are in error. <br />This Court should hold that the CWCB Findings and Recommendations must be upheld <br />unless the Applicant provides at least clear and convincing evidence that they are in error. While <br />there is no other legislative scheme similar to SB 216, the issue of "presumptive validity" arises <br />frequently in the law. The effect of the "presumptively valid" determination means that the <br />detertninations must be upheld unless the Applicant provides at least clear and convincing <br />evidence showing that those determinations were in error. Stone Environmental En ineering <br />Services, Inc. v. Colorado Dept. of Health, 762 P.2d 737 (Colo. 1988) (beyond a reasonable <br />doubt standard applied to judicial review of administrative proceedings); Moore v. District Court <br />In and For Citv and County of Denver, 518 P.2d 948 (Colo. 1974) (burden is on the challenging <br />party to establish the asserted invalidity beyond a reasonable doubt); Bird v. City of Colorado <br />14Retired Senator Anderson, and Patti Wells, former CWCB member and General Counsel for <br />the Denver Water Board. <br />19