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

Home Browse Search

2. Furthermore, as a public policy matter, the CWCB should encourage settlement of issues relating to applications for RICD water rights. Consideration by the CWCB during a contested hearing of offers to settle will have a significant chilling effect on an applicant's motivation to enter into such settlement negotiations with objecting parties. In this case, Pueblo has made significant good faith efforts over many months to reach a compromise on the RICD claims and a number of other issues with objecting parties. If Pueblo and other future RICD applicants will be penalized before the CWCB for having attempted to reach a compromise with parties objecting to its application, RICD applicants will be disinclined to enter into such discussions in the future. 3. Additionally, it would be highly inappropriate for the CWCB, as suggested by some objecting parties, to speculate about the underlying motivations of Pueblo in pursuing its RICD application. There is ample evidence of Pueblo's desire to construct a whitewater boating course to provide a reasonable recreation opportunity for its citizens and the surrounding areas. Neither the factors contained in Colo. Rev. Stat. § 37- 92- 102(6)(b) (2001) nor the CWCB rules, 2 C.C.R. 408 -3, permit the CWCB to undertake a subjective examination into other alleged intent and motives by an RICD applicant and to make its findings of fact and a recommendation based on such speculation. The role of the CWCB is limited to an evaluation of Pueblo's application based solely on its merits under the statutory factors. Consideration of issues outside the scope of these factors is improper. 4. Objecting parties have also asserted that Pueblo's authority under its own City Charter to pursue its water rights application is questionable. In adopting S.B. 216, the General Assembly has specifically recognized that municipalities are among the governmental entities authorized to seek an RICD water right. Any inquiry by the CWCB into whether Pueblo is an entity authorized to seek an RICD water right must end once it has been demonstrated that Pueblo is a municipality. To the extent that Pueblo's legal authority under its City Charter is questioned, this is a legal determination appropriate for consideration only by the Water Court. 5. It is similarly inappropriate for the CWCB to make any findings of fact or a recommendation regarding Pueblo's claimed appropriation date. S.B. 216 grants no authority to the CWCB to make a finding on this issue, as the issues to be considered by the CWCB are limited to the statutory factors set forth in Colo. Rev. Stat. § 37-92 - 102(6)(b) (2001). Again, it is solely within the province of the Water Court and beyond the CWCB's statutory authority to evaluate or make findings concerning the appropriation date claimed by Pueblo. 6. Finally, there is no indication either on the face of S.B. 216 or in the CWCB's regulations that a water right sought for piscatorial proposes falls within the ambit of the CWCB's authority to make findings of fact and a recommendation on applications for RICD water rights. Accordingly Pueblo's claim for piscatorial uses is lei