Pueblo RICD Hearing July 2002 Case No. 2-01CW160

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Before the Colorado Water Conservation Board Administrative Proceeding Concerning: Case Number: 01CW160 CONCERNING THE APPLICATION FOR WATER RIGHTS OF PUEBLO, A MUNICIPAL (Water Div. 2) CORPORATION IN PUEBLO COUNTY, COLORADO (RENEWED) MOTION FOR LIMITATION OF ISSUES SUBJECT TO CONSIDERATION IN CWCB HEARING Pueblo, a Municipal Corporation ( "Pueblo "), by and through its undersigned attorneys, filed a Motion for Limitation of Issues Subject to Consideration in the CWCB Hearing with the Hearing Coordinator on June 20, 2002. The Hearing Coordinator determined that the Colorado Water Conservation Board was the proper body to rule on this motion. Accordingly, Pueblo renews its motion and requests the CWCB to issue an order confirming that the issues described herein are not properly for consideration by the CWCB at the July 22, 2002 hearing concerning Pueblo's application for a Recreational In- Channel Diversion ( "RICD ") water right pursuant to Colo. Rev. Stat. § 37 -92 -305 (2001). In support of this motion, Pueblo states as follows: 1. Numerous parties opposing Pueblo's application have presented information in Prehearing Statements and attached exhibits that directly pertain to, and in some instances describe in thorough detail, though not always accurate, settlement negotiations between Pueblo and other entities. These negotiations concern not only Pueblo's RICD application, but also various pending water rights applications of other parties and proposed federal legislation concerning the Fryingpan- Arkansas Project. Some of the entities involved in the negotiations are not even parties to the RICD proceeding. Consideration of such negotiations is inappropriate pursuant to Rule 408 of the Colorado Rules of Evidence, which prohibits the use of evidence regarding offers to settle and a party's conduct during such negotiations. Although the CWCB may not be technically bound by Rule 408, the CWCB's findings of fact and recommendation concerning Pueblo's application must be reviewed by the Water Court under the same statutory factors upon which the CWCB evaluates the application. The CWCB should not consider and the CWCB's recommendation should not be based on information or evidence that will not be reviewable by the Water Court.