Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005 2

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the �Feasoil�1��fi +a��- e�r+eraceser�+rt -hq ��t c-aell tiHte iiat��rl- Is»lli wateris- e�Zttrxc c [beneficial uses described in r)ar:rarapi fi i al�[rve.l 1. 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 ar . absolute water - 04g" ri t for ._ LW Boating Park RICD under the five factors set out below: i. Compact Impairment. In its Findings and Reeonunendations 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 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 An3ropriateness. The Court finds that the Boating Park RI 'D 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 finding 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 ph083941