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

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remaining compact apportionment." The CWCB Staff cannot argue that an instream flow for all the Yampa River flow is maximum utilization, and now contend in this case that a RICD for a fraction of that amount which dovetails with downstream absolute and conditional water rights and Colorado's compact delivery obligation is not. In Empire Lodge Homeowner's Association v. Moyer, 39 P.3d 1139 (Colo. 2001), the Colorado Supreme Court explained "maximum utilization" means "maximizing the use of Colorado's limited water supply for as many decreed uses as possible consistent with meeting the State's interstate delivery obligations ...... 39 P.3d at 1150. Given the foregoing definition and the unrebutted testimony and evidence, outlined above, the Court finds that the terty's-clainrt Wating Park RICD as herein decreed with the limitations and terms as herein set forth] is consistent with and, in fact, promotes the "maximum utilization" principle in Colorado. It is a new, clean use of water on top of, and that works in tandem with, existing and future downstream diversions, generating revenue without polluting or consuming a single drop. "Maximum utilization" is served because the water passing through the course is left for other Colorado consumptive uses and to fulfill Colorado's compact delivery obligations on the Yampa River. Accordingly, the Court finds that the adjudication and administration of the tstitect C�'L oating Park RICD pursuant to and as set forth in this decree] will promote maximum utilization of the waters of the state by making a new, valuable beneficial use, without causing any reduction in flow or injury to downstream water rights, and without causing injury to upstream senior or 'union water rights. C.R.S. § 37 -92 -102 (6)(b)(V). Finally, as detailed above, the teit-y,s elaimedl [Boating Park RICD] flow rates Las herein decreed] are far less than the CWCB's 40th percentile flow rate policy. Thus, the RICD is consistent with "maximum utilization" under the CWCB's own policy. 1. The Supreme Court's Gunnison Decision. This Court is mindful of the Colorado Supreme Court's recent decision in Gunnison, and finds that the ieity,,s (Boating Park RICD right as decreed hereini is consistent with that decision and with Senate Bill 01 -216 as construed in that decision. 7L. Limiting Terms and Conditions. In order to accomplish the terms of the stipulations among the parties as referred to in paragraph 5 above, and in order_to meet concerns of the Division Engineer Water Division No & the following provisions are limitations and restrictions upon the City and upon the Boating Park RICD and the exercise of and any call by the Boating Park RICD right: a&. Measurement. Before the City may make a call on the Yampa River for the Boating Park t.Right} Rte, and before the Boating Park � RICD may be administered by the Division Engineer ]for Water Division No. 61, the City shall either NOW -10-