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

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former Colorado State Engineer, and his letter report dated April 18, 2005, that the adjudication and administration of the RICD will not impair Colorado's ability to fully develop and place to consumptive beneficial use its compact entitlement. The Court concurs with the CWCB's findings and recommendations on this issue and the testimony and reports of Mr. Thompson and Dr. Danielson. Accordingly, the Court determines that the adjudication and administration of the RICD will not impair Colorado's ability to fully develop and put to consumptive beneficial use the State's compact entitlements. C.R.S.§ 37 -92 -102 (6)(b)(I). As detailed below, this determination has bearing on the issue of maximum utilization and whether the RICD is located within an appropriate stream reach. ii. Stream Reach Appropriateness. The Court finds that the Boating Park Rj ICDi is located in an appropriate reach of the Yampa River for the intended uses. C.R.S. § 37 -92 -102 (6)(b)(II). The CWCB's finding that the Boating Park is not an appropriate reach was based solely on the concern that the RICD structures might adversely impact the flood plain. C.R.S. § 37 -92 -§ 102(6)(b)(II) directs the CWCB to make a finding concerning the "appropriate reach of stream required for the intended use." (Emphasis added.) The express focus of the plain language requires only that the CWCB make a finding on whether the stream reach is appropriate for the City's purposes in building the structures. That plain language reading is confirmed by the legislative history on SB -216 where CWCB Director Kuharich explained: "Now the second fording would be whether the identified reach is appropriate for the intended use the length of reach, such as that." (Exh. S -24, April 12, 2001 transcript at 3)(emphasis added).) There is absolutely nothing in the legislative history of SB -216 that would allow the CWCB to use flood control issues as a basis to recommend against a RICD. Not a single person testifying either in support of or against the bill suggested that "appropriate reach" could include flood control considerations. The fact is that flood control issues have never been a basis to deny a water right, and there is nothing in SB 216 that creates the ability to establish such a precedent. Every traditional direct flow diversion, not to mention every storage facility, potentially impacts the flood plain to some degree. It simply never has been an issue in the water rights context, and .recommending against a water right on a flood control basis would run directly contrary to the constitutional right to appropriate. Colo. Const. Art. XVI, § 5. Most relevant to this issue is the fact that the reach selected for the Boating Park R was dictated by the recreation needs the City sought to meet, the area geography, and the City's overall river management objectives. In this regard, the Court takes note of the City's Yarnpa River Management Plan which was over three years in the making, and the testimony of Mr. Neumann which explains the Management Plan. That Management Plan dictates the appropriate stream reach for the Boating Park R1�CD to disperse various competing recreation activities on the Yampa River and meet the City's objectives for the Yampa River. Because the CWCB's ph0841 - #2 -8-