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6b. Whether the Applicant is or will be diverting, capturing, and controlling water in its <br />natural course or location with physical control structures. <br />b SB 216 does not suggest that CWCB should determine if the applicant is diverting, capturing <br />and controlling the water. This is the role of the water court. (Pueblo) <br />* This determination, a factual issue not to be determined in a limited hearing setting, is within <br />the province of the Water Court, not the CWCB. (Golden, Breckenridge and ERWSD) <br />b Rule 6b could be added to 7b, changing the word `location' to `between specific points'. <br />(NCWCD, CSU) <br />b Delete 6b as it is within purview of water court. This is an issue CWCB may address as party <br />to a water court proceeding, but it is improper to transform opinion into a presumptive <br />finding of fact through RICD rules. (CRWCD) <br />7. REQUIRED FINDINGS <br />Pursuant to Section 37- 92- 102(6)(b), C.R.S. (2001), the Board is required to make the <br />following findings: <br />}► The Staff recommends amending this language as stated above under Rule 6, but otherwise <br />keeping this language as it is. <br />b The Board is authorized to establish additional factors to those set out in 37-92-102(6)(b)(1- <br />V). However, the additional factors in Rule 7 do not identify why the factors are needed nor <br />identify a standard by which factors are to be reviewed or how recommendations based on <br />those factors will be made. (Gunnison County) <br />Language of the rules must track the language of SB 216 precisely. Potential issues of <br />improper expansion of legislative authority might otherwise result. Rule 7 tracks, but not <br />precisely, the statute. The language "but is not limited to" (related to consideration of factors) <br />set forth in various subsections must be deleted as violation of Section 6(b)(VI), which <br />requires that all factors be expressly set forth in the Rules. Many factors set forth in <br />subsections are inappropriate and beyond the authority of CWCB to impose. (Golden, <br />Breckenridge, ERWSD) <br />b Appreciate the fact that the Rules no longer require applicant to submit information for Rules <br />7 and 8, but concern remains that an application will be denied because of lack of <br />information. Rules should provide more clarification as to what `adequate information' is and <br />to what extent an applicant has the responsibility to provide information pertaining to factors <br />in Rule 7. (UGRWCD) <br />b Suggested wording changes to reflect C.R.S. 37- 92- 102(6)(b)(VI) in which the Board is <br />required not to make findings but required to consider the identified factors. Delete "is <br />required to make the following findings:" and replace with "shall consider the following <br />factors and make written findings thereon:" (NCWCD, CSU) <br />b Section revised to include only factors required by SB 216. But CWCB's interpretation of <br />these factors results in the inclusion of criteria with no statutory basis in SB 216 and <br />conflictive with other laws. See discussion in subsections below. (CRWCD) <br />7a. Whether the adjudication and administration of the RICD would impair the ability of <br />Colorado to fully develop and place to consumptive Beneficial Use its Compact Entitlements. <br />The Board, in making this finding, may consider, but is not limited to, the following factors: <br />}► The Staff recommends keeping this language as it is because it tracks the statutory language. <br />7 <br />