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b Recognize that finding is provided for in SB 216, but it cannot be made without <br />impermissible speculation, which is contrary to "first in time, first in right" foundation of <br />appropriation system. In the absence of a filed application, conclusions regarding future <br />consumptive uses are speculation, as are criteria iii — vi. Factor is contrary to `maximum <br />beneficial use' and emphasizes view of concern to Aspen, that recreational uses of water are <br />less important or valuable than other uses. (Aspen) <br />b In- channel uses could impact water users; however, SB 216 declared RICDs to be a <br />beneficial water use. As such, owners of decreed RICDs have the right to assert injury in <br />subsequent proceedings, including exchange. General Assembly did not make RICDs <br />subservient to consumptive beneficial uses nor was CWCB allowed to determine whether <br />RICD would make it more difficult to decree future beneficial use. Only relevant inquiry <br />under this factor is whether the volume of water controlled by RICD in priority would <br />require Colorado to exceed its interstate delivery requirements, given the ability of <br />constitutionally - preferred uses to condemn a RICD to effect compact development. <br />(CRWCD) <br />i. The amount and location of remaining unappropriated Compact Entitlement waters in <br />the basin in question and the RICD point of diversion; <br />}► The Staff recommends keeping this language as it is. <br />b Should be deleted because the information requested here may be partially relevant to a water <br />availability determination but is not necessary to determine whether the RICD would impair <br />Colorado's ability to fully develop and place to consumptive beneficial use its compact <br />entitlements. (CRWCD) <br />ii. The proximity to the state line; <br />}► The Staff recommends changing the language as suggested. <br />b Add "of the RICD reach" between `proximity' and `to'. ( NCWCD, CSU) <br />iii. The proximity of the RICD to suitable upstream points of diversion or storage which <br />may be utilized by those who would place the water to consumptive beneficial use; <br />}► The Staff recommends keeping the language in this Rule, and in Rules iv and v, as the <br />language is, or potentially making the future diversion points or places of storage be <br />specifically in the planning stage. <br />b Sections iii and v are based on inappropriate speculation about future, unknown conditions <br />and are not relevant to Board's recommendation to the water court. No other water right <br />application is subject to such speculation. Recommending denial of a current application for <br />a beneficial use based on future, speculative use is contrary to Colorado water law and goal <br />of "maximum utilization of the waters of the State." (NWCCOG -QQ) <br />b Sections iii, iv and v are contrary to Colorado law and must be deleted. Go far beyond <br />whether an RICD would impair Colorado's ability to fully develop compact entitlements and <br />suggest RICD appropriations could be limited or denied on basis of future speculative uses. <br />Disapproval of current uses on the basis of speculative, future uses is contrary to goal of <br />maximizing beneficial use. Colorado Supreme Court has held that current appropriations <br />cannot be defeated by speculative future uses, Board of County Commissioners of Arapahoe <br />County v. United States 891 U.S. 952, 962 (Colo. 1995) (water availability must be based on <br />river conditions existing at the time of appropriation) or by policy restraints rooted in concern <br />