Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005

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limited to 350 cfs. See Policy, Section 5. That 350 cfs cap is a "one size fits all" approach to RICD's that is inconsistent with the Gunnsion decision and beyond the CWCB's statutory RICD review authority. Moreover, this approach was specifically rejected by the 2005 General Assembly when it voted against this unifonn 350 cfs cap for RICD rights as it was presented in Senate Bill 62. The CWCB's RICD Policy contains a more flexible, alternative analysis to the reasonableness of a RICD claim which explains a RICD is presumably unreasonable if it is above the 40`x' percentile flow rate historically available during a particular time interval. Policy at 5. Presumably, if a RICD claim is below the 40"' percentile flow rate, the amounts claimed are reasonable. Mr. Thompson has demonstrated to the Court's satisfaction that the City's original claimed flow rates up to 1700 cfs are only at the 20th percentile level. Mr. Thompson's report dated May 17, 2004, demonstrates that under the CWCB's exceedance policy, a flow rate of over 2400 cfs would be reasonable. The highest decreed flow rate of 1400 cfs is only for a narrow, two -week window in the high spring run -off period, and is 1000 cfs less than the CWCB's own flow exceedance criteria would allow. Thus, the claimed flows are reasonable under the CWCB's own policies and rules. For the foregoing reasons, The Court finds that the recreational experiences sought by the City are objectively reasonable on the Yampa River and that the claimed flows are the minimum necessary to accomplish the fivasonaHe recreation. exp —fit by the eity [benetieial uses described in paragraph 6.11 above.] k. Statutory RICD Provisions. Pursuant to § 37- 92- 102(6)(a), the CWCB held a timely public hearing regarding the City's application and considered the five statutory factors found in C.R.S. § 37- 92- 102(6)(b)(I) -(V). The CWCB made a final recommendation to the Court on those factors. The Court finds that the City is entitled to Lan J absolute water rights ri ht for z-rts) ithel Boating Park RICD Derr gghts < under the five factors set out below: i. Compact Impairment. In its Findings and Recommendations in this matter, the CWCB concluded: Adjudication and administration of the RICD will not impair Colorado's ability to fully develop and put to consumptive beneficial use its compact entitlements because the amount of the claimed RICD can either be used downstream of the RICD or contribute in part to the delivery obligation of Article 13 of the Upper Colorado River Compact. The City also presented the testimony of Mr. Gary Thompson, water resources engineer, and his letter report dated January 20,2004, and the testimony from Dr. Jeris Danielson, the ph0841 - #2 -7-