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i. The nature and extent of the ISF in the subject reach or any affected downstream <br />reach; <br />ii. The timing and duration of the RICD as such may relate to the specific use which is <br />the basis for the ISF; <br />iii. Whether the RICD would negatively impact an ISF or the natural environment that it <br />protects; and, <br />}► The Staff recommends changing the language as suggested below. <br />b Delete "an ISF or" and "that it protects" and add "for which the ISF was decreed" between <br />"environment" and "; and," per reason stated above. (NCWCD, CSU) <br />iv. Whether the construction of the RICD structures may injure the ISF or the natural <br />environment that the ISF protects. <br />�-► The Staff recommends changing the language as suggested below. <br />Delete "injure" and replace with "cause material injury to ". Delete "or" and replace with <br />"including ". Language more closely mimics the statutory language. (NCWCD, CSU) <br />e. Whether the adjudication and administration of the RICD would preclude maximum <br />utilization of the waters of the State. The Board, in making this finding, may consider, <br />but is not limited to, the following factors: <br />}► The Staff recommends that this language be changed to reflect the statutory language <br />(`promote" should be substituted for `preclude') as suggested below. <br />b Proposed rules inappropriately require RICDs to compete with currently non - existent <br />consumptive water uses. (Pueblo) <br />Aspen believes that RICDs promote maximum utilization of the waters of the state as much <br />as other water rights do. As noted by others, the speculative nature of the required findings is <br />disturbing and flies in face of Colorado's appropriation doctrine. Implied judgement that <br />RICDs are less important or valuable than consumptive water rights is inherent in these <br />criteria, and is also disturbing. (Aspen) <br />Replace "preclude" with "promote." "Promote" is used in SB 216. The use of "preclude" <br />effectuates a fairly significant change in statutory intent; it provides whether adjudication and <br />administration of the RICD would promote maximum utilization of waters of the State as <br />referenced in paragraph (a) of subsection (1) of this section. C.R.S. 37- 92- 102(6)(b)(V), <br />paragraph (a) of subsection (1) of C.R.S. 37 -92 -102 references the integration of <br />underground water tributary to a stream with surface flows. However the Northern District <br />and CSU do not believe this cross - reference was intended to read narrowly as encompassing <br />only this groundwater /surface water interface. Rather, the word "promote" was utilized <br />because it was the intent of the legislature to reference the concept of "maximum utilization" <br />as interpreted by the Colorado courts as a factor to be considered by the Board. (NCWCD, <br />CSU) <br />b This factor does not say the same thing as the statute. Use of "preclude" rather than <br />"promote" changes meaning of the statue. Should be rewritten with "promote ". In general, <br />the considerations under subsection (e) seem overly broad and speculative. They call for <br />speculation and take into consideration information not relevant to whether an RICD will <br />promote "maximum utilization." (NWCCOG -QQ) <br />13 <br />