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Answer to Applicant's Closing Brief: Case No. 02CW38
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Answer to Applicant's Closing Brief: Case No. 02CW38
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Last modified
1/26/2010 4:41:46 PM
Creation date
7/30/2009 12:09:57 PM
Metadata
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Template:
Water Supply Protection
File Number
8230.2B3
Description
Pleadings
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
1/1/3000
Author
District Court, Water Division 4
Title
Answer to Applicant's Closing Brief: Case No. 02CW38
Water Supply Pro - Doc Type
Court Documents
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experience" for many boaters, including experienced kayakers, (Exhibit F, Transcript, p. <br />38) and will also allow adequate opportunities for future upstream development. The <br />Applicant's engineering expert has testified that the proposed RICD impairs junior <br />upstream development potential in certain years. (Deposition transcript, Expert Jim <br />Slattery, Exhibit H, pp. 38, 70, 79). <br />Because SB 216, case law, and the Applicant's own evidence sufficiently show <br />that 250 c.f.s. promotes maximum utilization by allowing reasonable recreation <br />experience and future upstream development, this Court must uphold the presumptive <br />validity of that CWCB determination. <br />d. 250 c.f.s. is the minimum stream flow necessary for a reasonable <br />recreation experience that does not impair compact entitlements. <br />FILL IN <br />This Court should not overturn the presumptively valid finding that at 250 c.f.s., <br />the RICD will allow Colorado to fully develop and put to beneficial use its compact <br />entitlements under section 37-92-102(6)(a)(I) because this finding is supported by <br />sufficient evidence and, thus, is clearly not "in error beyond a reasonable doubt." The <br />Applicant cannot show clearly and convincingly that this finding was in error beyond a <br />reasonable doubt, and any questions as to the correctness of that finding must be resolved <br />in favor of the CWCB. Thus, this Court must rule in favor of this CWCB finding. <br />The CWCB's finding that 250 c.f.s. is the appropriate amount of water to allow <br />Colorado to fully develop and put to beneficial use its compact entitlements supports the <br />purposes of SB 216 and is supported by the evidence. First, SB 216 supports a finding <br />that 250 c.f.s is the appropriate amount of water to allow Colorado to develop its compact <br />entitlements. The intent of SB 216 was to ensure that RICDs "are integrated into the <br />state's prior appropriation system in a manner which appropriately balances the need for <br />16
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