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C. The Applicant agreed and the evidence showed that <br />at 250 c.f.s, maximum utilization was promoted. <br />This Court should uphold the CWCB's presumptively valid finding that at 250 c.f.s., the <br />RICD will promote maximum utilization of the waters of the state under section 37-92- <br />102(6)(b)(V). The Applicant did not provide clear and convincing evidence that the CWCB <br />erred in finding that 250 c.f.s. would promote maximum utilization. In fact, the Applicant agreed <br />that at 250 c.f.s., maximum utilization is promoted. (Exhibit M, p. 28). <br />The CWCB's finding that 250 c.f.s. promotes maximum utilization of Colorado's waters <br />implements the legislative purposes of SB 216, is supported by the case law and the Applicant's <br />own evidence, and should be upheld. <br />The General Assembly authorized the CWCB to determine whether a proposed RICD <br />uses the "minimum stream flow" for a"reasonable recreation experience" that promotes <br />"maximum utilization," among other things. § 37-92-102(6)(b)(V). The Legislature also <br />granted the CWCB the authority to enact rules and determine on a case-by-case basis whether an <br />application would promote maximum utilization. Id.; § 37-92-102(6)(b)(VI). "It is anticipated <br />that under the bill the CWCB will establish further criteria governing such diversion, such as <br />additional guidance upon the appropriate time of day, season of use, length of reach and <br />minimum utilization demands, in order that additional objective benchmarks for judging the <br />propriety of such appropriations are established." (Exhibit J, Rep. Spradley, p.l). As <br />contemplated by section 37-92-102(6)(b)(VI), the CWCB conducted appropriate rulemaking that <br />further defined "maximum utilization." 2 CCR 408-3, Rule 7(e). Thus, the "flow rate of the <br />proposed RICD" is a factor in determining whether maximum utilization is promoted. 2 CCR <br />408-3, Rule 7(e)(vii). <br />23