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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2
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the April 12, 2004, letter by City Staff explaining the meaning of the flows listed in Table 2, as <br />well as the testimony of City Staff and the members of the City's Citizen Advisory Committee. <br />That letter and testimony explain that the flow rates listed for various activities in the column <br />titled "Minimum Flow" were derived from suggestions during its river planning process for the <br />amount of flow necessary to protect biological resources of the natural environment and to insure <br />that the specified activity did not impact these resources during the indicated time frames. The <br />Court accepts this explanation and concludes that this column does not set forth the minimum <br />amounts of water necessary to achieve a reasonable recreation experience in connection with the <br />Boating Park. Rather, as explained by City Staff, the column entitled "Recommended Flows" in <br />the bottom chart on Table 2 sets forth the minimum amounts necessary to create the City's <br />intended reasonable recreation experience. The Court notes that the City's RICD application <br />applied for the "Recommended Flows" in Table 2, and that these claimed flows are significantly <br />less than the "Optimal Flow" column in the upper chart on Table 2. <br />Mr. Thompson has demonstrated in his various letter reports, particularly his report dated <br />April 15, 2005, that the Yampa River basin is not over - appropriated, and that a variety of water <br />development strategies, including new junior diversions and exchanges from downstream, can be <br />used to support development of the Yampa River basin above the Boating Park through projected <br />build -out. The Gunnison decision suggests such considerations might be relevant in determining <br />whether a claimed flow rate is for a "reasonable recreation experience." Gunnison at 602. <br />The CWCB has argued that the claimed RICD flows are not for the minimum necessary <br />to provide a reasonable recreation experience on the grounds that its Recreational In- Channel <br />Diversion Policy Regarding Technical Criteria ( "Policy ") suggests that RICD claims should be <br />limited to 350 cfs. See Policy, Section 5. That 350 cfs cap is a "one size fits all" approach to <br />RICD's that is inconsistent with the Gunnsion decision and beyond the CWCB's statutory RICD <br />review authority. Moreover, this approach was specifically rejected by the 2005 General <br />Assembly when it voted against this uniform 350 cfs cap for RICD rights as it was presented in <br />Senate Bill 62. <br />The CWCB's RICD Policy contains a more flexible, alternative analysis to the <br />reasonableness of a RICD claim which explains a RICD is presumably unreasonable if it is <br />above the 40'h percentile flow rate historically available during a particular time interval. Policy <br />at 5. Presumably, if a RICD claim is below the 40t" percentile flow rate, the amouuits claimed are <br />reasonable. Mr. Thompson has demonstrated to the Court's satisfaction that the City's claimed <br />flow rates are only at the 20th percentile level. Mr. Thompson's report dated May 17, 2004, <br />demonstrates that under the CWCB's exceedance policy, a flow rate of over 2400 cfs would be <br />reasonable. The highest decreed flow rate of 1700 cfs is only for a narrow, two -week window in <br />the high spring run -off period, and is 700 cfs less than the CWCB's own flow exceedance <br />criteria would allow. Thus, the claimed flows are reasonable under the CWCB's own policies <br />and rules. <br />For the foregoing reasons, The Court finds that the recreational experiences sought by <br />the City are objectively reasonable on the Yampa River and that the claimed flows fr m tlz <br />decreed sources (excluding the Excluded Sourcesfl are the minimum necessary to accomplish <br />ph083941 <br />
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