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

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focus in determining the "appropriate reach" inust be, made with a view toward the City's intended purposes, no further inquiry under § 37- 92- 102(6)(b)(II) is necessary or appropriate. Nonetheless, it should be noted that the CWCB's characterization of the flood impacts caused by the RICD structures at issue is simply not accurate. The City has provided the Court with a flood plain permit demonstrating no impact from the RICD structures and the Court is satisfied with the evidence on this point. iii. Access for Recreational Use. The Court finds that there is sufficient access for the [decreed beneficial uses as described in paragraph 6.11 above]. C.R.S. § 37- 92102 (6)(b)(II1). This point was conceded in the CWCB's Findings and Recommendations and the Court concurs. iv. Instream Flow Rights Injury. The Court finds that the tWC -Bs&j Baatin Park RICDI will not cause material injury to any instream flow water rights. C.R.S. § 37 -92 -102 (6)(b)(IV). There are no instream flow rights in the subject reach and the (Boating Park l RICD -'trigbtsf will be entirely non - consumptive. This point was conceded in the CWCB Findings and Recommendations and the Court concurs. V. Maxim-Lim Utilization. In finding that the I Boating Parkl RICD does not impact Colorado's compact entitlements, the CWCB determined that the amount of the claimed Boating Parkl RICD can either be used downstream of the [Boating Park! RICD or contribute to Colorado delivery obligations under the Upper Colorado River Compact. The testimony of Mr. Gary Thompson and his letter report dated January 20, 2004, demonstrate that the Boatin La—rkj RICD adds a new nonconsumptive use onto water that is commanded downstream by senior absolute and conditional water rights that substantially exceed the claimed amounts of the Boating Park] RICD. Mr. Thompson's testimony and letter reports dated January 20, 2004, May 14, 2004, and April 15, 2005, also demonstrate that there are substantial existing conditional water rights and unused storage rights that are senior to and upstream of the !Boating Park, RICD. These reports further indicate that the claimed RICD flows leave substantial unappropriated water for future upstream development and exchange potential. All of the foregoing water rights and future water supplies are more than sufficient to sustain the Upper Yampa basin through any reasonable anticipated projected build out. Thus, the {maimed Rf t[Court finds that the Boating Park RICD in accordance with this decree] does not have any material impact on the development of future water supplies for existing and future upstream development. The testimony and letter report of Dr. Danielson further corroborated these fxndispntmff facts. The Court has also reviewed the December 5, 1995 memorandum prepared by the CWCB Staff in connection with the CWCB's earlier Yampa River instream flow filings explaining that the appropriation of all of the remaining Yampa River flows minus a 52,000 acre foot carve out "can be appropriated without depriving the people of Colorado of the ability to fully develop the rnas41 -9-