Laserfiche WebLink
6. Whether the proposed RICD meets the definition of an RICD as found in section 37 -92- <br />103(10.3). This requires the amount claimed to be the "minimum stream flow" and that it be <br />for a "reasonable recreation experience." The board should consider whether the requested <br />RICD physical control structures divert, capture, control and place to beneficial use the water <br />claimed. <br />The Applicant can appropriate only "the minimum stream flow ... for a reasonable recreation <br />experience in and on the water" or otherwise the Applicant is not applying the water to a beneficial <br />use. § 37- 92- 103(10.3), C.R.S. (2005); Colorado Water Conservation Bd. v. Upper Gunnison River <br />Water Conservancy Dist. 109 P.3d 585, 598 (Colo. 2005). If the Applicant claims more water than <br />is necessary, the Applicant is, by definition, not promoting maximum utilization. <br />The Legislature authorized the CWCB to make findings about maximum utilization. § 37-92 - <br />102(6)(b)(V). <br />In addition, section 37- 92- 102(6)(b)(V) directs the CWCB to find whether adjudication and <br />administration of the RICD application "would promote maximum utilization of waters of <br />the state" as envisioned by section 37- 92- 102(1)(a) which incorporates a basic tenet of <br />Colorado water law into RICD applications. Again, this duty is consistent with the Board's <br />enabling statute, under which the CWCB has the duty "to promote the conservation of the <br />waters of the state of Colorado in order to secure the greatest utilization of such waters." <br />§ 37 -60- 106(1). To this end, the CWCB is to promote the implementation of "sound <br />measures to enhance water use efficiency in order to serve all the water needs of the state." § <br />37- 80- 106(1)(r). Gunnison at 594. <br />Similarly, the CWCB must make findings "on whether Applicant's claimed stream flows would <br />conserve and efficiently use the available... river flow, thereby promoting maximum utilization of <br />Colorado's waters." Id. at 595. Thus, in determining whether the RICD promotes maximum <br />utilization, the CWCB must consider whether the RICD promotes the conservation of the waters of <br />the state of Colorado in order to secure the greatest utilization of such waters, whether the RICD <br />uses sound measures to enhance water use efficiency in order to serve all the water needs of the <br />state, and the RICD would conserve and efficiently use the available river flow. Importantly, the <br />issue of whether the CWCB can consider whether the RICD is for more than the minimum stream <br />flow for a reasonable recreation experience and therefore wastes water, fails to conserve or <br />efficiently use water, and, thus, does not promote maximum utilization. <br />Related to the analysis of maximum utilization is whether the RICD is for the minimum <br />amount necessary for a reasonable recreation experience. The Legislature authorized the CWCB to <br />make findings on other appropriate factors as set forth in rules and adopted by the board, after public <br />notice and comment. At the time of the Gunnison decision, the Board had not adopted additional <br />factors for consideration. However, the Board this factor, as quoted above, as an additional factor <br />that is appropriate for evaluation. <br />The CWCB should, therefore, analyze the flow rates as claimed, with regard to whether the <br />flow rates claimed are the minimum stream flows for a reasonable recreation experience. The <br />legislation, the CWCB rules, and those basic legal principles all require that the applicant not seek <br />more water than is necessary to accomplish its intended purposes. <br />Flood Protection • Water Project Planning and Finance • Stream and Lake Protection <br />Water Supply Protection • Conservation Planning <br />