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Appellants, the Colorado Water Conservation Board ("CWCB" or "the Board") and the <br />State and Division Engineers (collectively, "the State"), through the Attorney General for the <br />State of Colorado and the undersigned Assistant Attorneys General, set forth the following <br />Opening Brief: <br />STATEMENT OF THE CASE <br />This is the first recreational in-channel diversion ("RICD") case tried under Senate Bill <br />01-216 ("SB 216") and the second heard by the CWCB. In SB 216, the Legislature first <br />recognized, and then defined and limited such recreational instream uses to the "minimum <br />stream flow" necessary for "a reasonable recreation experience." The Legislature also <br />established special procedures for RICD applications and provided other limitations in addition <br />to how much water an applicant can claim. <br />The Legislature gave the CWCB the responsibility to make findings of fact and a <br />final recommendation as to whether the application should be granted, granted with <br />conditions, or denied. § 37-92-102(6)(a). In considering whether to grant, grant with <br />conditions, or deny the application, the CWCB was charged with the responsibility to <br />determine, inter alia, whether the RICD would promote maximum utilization of waters of <br />the state and would impair Colorado's ability to develop and use its compact entitlements, <br />and to consider "any other appropriate factors" established by CWCB regulations. § 37- <br />92-102(6)(b). The Legislature deemed.such findings to be presumptively valid, subject to <br />rebuttal. § 37-92-305(13), C.R.S. (2004). <br />In this case, the Upper Gunnison River Water Conservancy District ("the Applicant") <br />applied for an RICD on the Gunnison River on the edge of the City of Gunnison. The Applicant