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18. SUBMISSION OF FINDINGS AND RECOMMENDATION TO THE WATER COURT <br />Pursuant to section 37- 92- 102(6)(c), C.R.S. (2001), the Board shall submit its Findings of <br />Fact and recommendation to the water court within 90 days after the final closing date for <br />filing statements of opposition. However, the Board, for good cause shown on the record, may <br />request that the water court grant additional time to the Board for making and reporting its <br />Findings of Fact and its recommendations. <br />}► The Staff recommends further investigation into this issue by the Attorney General's office <br />prior to the November 8, 2001 hearing and acting upon the results of this investigation. <br />b Modify by adding "and based upon the evidence in the record" after "C.R.S. (2001) ". The <br />Northern District and CSU previously suggested that the Attorney General's office may want <br />to investigate the legal propriety of this provision (last sentence of the Rule) in view of the <br />fact that the same statute establishes a deadline. (NCWCD, CSU) <br />Unclear how the Board will participate in the Water Court's proceedings. It would be <br />appropriate for Board to participate solely through the process established by these Rules. <br />However, if the Board does file a statement of opposition and the Board's determination <br />under these Rules is different, the determination must supercede any statement of opposition. <br />(NWCCOG -QQ) <br />b There is no authority to allow the CWCB to seek or obtain an extension of the 90 day <br />deadline for its recommendation. The statute specifically states that the CWCB "shall report <br />its findings to the Water Court" within 90 days after the time period for filing of statements <br />of opposition has expired. This is a fixed and statutory deadline. The Board cannot seek, and <br />the Water Court cannot grant, an extension. The Court can extend deadlines imposed by the <br />Court itself, but not statutory deadlines where, as here, the statute itself does not give them <br />power. (Golden, Breckenridge, ERWSD) <br />General Comments <br />b Pueblo cannot support the rules as proposed. SB 216 recognizes RICDs as a beneficial use. <br />The proposed rules appear to favor consumptive uses over RICDs, a result not intended by <br />the General Assembly and contrary to appropriation system and Colorado water law. The <br />rules contain factors that exceed the statutory authority and historic expertise of the CWCB. <br />The rules impose unnecessary burdens on applicants not required of applicants for other <br />types of water rights, making the RICD process unduly cumbersome. <br />b Aspen shares concerns in comments expressed by others related to the staff report and <br />hearing process. Some of the proposed rules go well beyond the factors specifically set forth <br />in SB 216. Because CWCB's findings of fact are presumptively correct, this incursion into <br />the water court's function of finding of facts after being presented with evidence from the <br />applicant and opposers is of great concern. <br />b Gunnison County. Presents a formal request, pursuant to 24- 4- 103(4.5)(a), C.R.S. for the <br />CWCB to issue a regulatory analysis of the proposed rules to be available at least five days <br />before the rule- making hearing. Lists six factors the analysis must contain. Presents a formal <br />request, pursuant to 24- 4- 103(8)(b), that no rule be issued by the CWCB unless it is first <br />submitted by the CWCB to the attorney general for his opinion as to its constitutionality and <br />legality. Gunnison County's comments are framed in the context of 24- 4- 103(4)(b), C.R.S. <br />and 24- 4- 103(8)(a) (both referenced in their letter). <br />24 <br />