Comments of the City of Aurora Through its Utility Enterprise August 2005

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' MFORE THE COLORADO WATER CONSERVATION BOARD COMMENTS OF THE CITY OF AURORA THROUGH ITS UTILITY ENTERPRISE IN THE MATTER OF THE RULEMAKING HEARING TO CONSIDER PROPOSED AMENDMENTS AND ADDITIONS TO THE RECREATION IN- CHANNEL DIVERSION RULES (2 CCR408 -3) Introduction: The City of Aurora, through its Utility Enterprise, submits the following red -line comments upon the proposed amendments to the recreation in- channel diversion rules. The comments are arranged by rule number for ease of reference. Where appropriate, a separate explanation of the proposed wording changes is included. Comments: 1. RULE 4 i. Findings of Facts and Recommendation; Means the written FACTUAL findings of the Board regarding the factors set out in Section 37- 92- 102(6), C.R.S. and the RICD Rules and the written recommendation of the Board to the water court as to whether an application for AN RICD should be granted, granted with conditions, or denied. 2. RULE 4 o. Reasonable Recreation Experience; Means an OBJECTIVLEY RESONABLE RECREATION experience in and on the water OF THE TYPE IDENTIFIED IN THE RICD APPLICATION, TAKING INTO ACCOUNT THE REASONABLNESS OF THE REQUESTED FLOW AMOUNTS ON THE PARTICULAR STREAM IN ISSUE. THAT WOULD ALLOW ATaPnao ST S 3 rIIT44 SUITABLE CKI- LLLS ANP ABILITIES PrE A TING TO THE SPECIFIC REGR A T 0l A T ACTIVITY _F W44IC17 TT7� Z'QZ7ZT1T1 T��Tl"� �TT TiI'�2'�l'".i ALATZER RIGHT 19 BF;PT '_` SO GHT — TO PARTAKE TA THAT ZCTWTITV : Explanation: In Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District, 205 P.3d (2005), the Supreme Court indicated that "the CWCB may not look beyond an applicant's sought recreation experience." Furthermore, the underlyng statute "does [not] give the CWCB any authority to dictate a flow rate or recreation experience for RICD water rights." Id. Finally, in its own attempt to define this term, the Supreme Court stated: Putting the above legislative history together with the language of the statue, we hold that the phrases "minimum stream flow" "for a reasonable recreation experience in and on the water" should be interpreted in the following manner. Initially, the water court must determine whether an application is for a RICD as defined in Section 37- 92- 103(10.3). To do so, the water court first must determine whether the appropriation sought by the applicant, viewed objectively, is for a reasonable recreation experience in and on the water -more specifically, are the requested flow amounts reasonable on the particular stream? This determination necessarily will vary from application to application, depending on the stream involved and the availability of water within the basin. That is to say, "the CWCB is limited to review of an application on its face," and may not "look beyond the stream flow claimed or the recreation experience intended by an applicant." Id. Hence, the Board should focus more,upon the reasonableness of the flow amounts on the stream in question and less upon the nature of the recreation experience that could be enjoyed based upon the skill level of the individuals involved.