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The Water Court held that once the CWCB concluded that 250 c.f.s. was appropriate, the <br />Applicant "had the burden of going forward to demonstrate why any greater amount is <br />appropriate," and refused to place any greater burden on the Applicant. " (Exhibit A, p. 14). <br />This holding wrongly puts the burden on the CWCB to show why the Applicant's request should <br />not be granted as opposed to requiring the Applicant to show why the CWCB Findings and <br />Recommendations are in error. <br />That the CWCB's presumptively valid Findings and Recommendations must be upheld, <br />unless there is clear and convincing evidence showing that those determinations were in error <br />beyond a reasonable doubt, and any questions as to the correctness of that finding should be <br />resolved in favor of the CWCB. <br />B. The Applicant did not provide clear and convincing <br />evidence that the CWCB erred in finding that 250 <br />c.f.s. is the minimum stream flow necessary for a <br />reasonable recreation experience. <br />The Water Court refused to infringe on the Applicant's determination of the "size and <br />scope" of its RICD, and thus, clearly failed to implement SB 216's requirement that an RICD be <br />limited to a minimum stream flow necessary for a reasonable recreation experience. This <br />holding must be overturned because there was ample evidence at both the CWCB hearing and at <br />trial showing that 250 c.f.s. was the minimum stream flow necessary for a reasonable recreation <br />experience. <br />15 The Water Court cited CRE 301 for the conclusion that the rebuttable presumption does not <br />shift to the Applicant "the burden of proof in the sense of risk of non-persuasion, which remains <br />throughout the trial upon the party on whom it was originally cast." (Exhibit A, p. 14). <br />21