Comments of the West Slope Water Network Regarding the CWCB RICD Rulemaking August 2005

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2 many organizations to apply for a conditional decree. In contrast, conditional storage decrees do not require design parameters of the control structures before a right is granted. This would be more likely a part of the review of the Army Corps of Engineers in the 404 permitting process. The design and engineering should be undertaken after the conditional right is obtained but before the right is perfected. If the effects of the structures on flooding can not be properly addressed, the applicant would not be able to put the right to use and would eventually lose the right. There is no requirement under any other application for design of structures to be done prior to application for a conditional water right. While all developers of rights take financial risks, the initial application is not the place to impose this added burden. Second, from reading the opinion of the Supreme Court of Colorado, which resulted from the Gunnison case, it would seem that the new rule puts more control over the granting of these rights in the hands of the Colorado Water Conservation Board than the legislature intended at the time of its enactment. The Board was charged with the review of applications for Recreational In Channel Diversions under the five factors in the legislation and "such other factors as may be determined appropriate for evaluation of recreational in- channel diversions and set forth in rules adopted by the board after public notice and comment". It appears that the Board has attempted to expand its role by adding several new sub - factors in this latest version of the rule. Through these sub - factors, the Board appears to be putting itself in the position of determining the amount necessary for an in channel diversion. The opinion of the courts has consistently been that the Board does not have this authority. As an observer of the legislative process that took place in 20011 am aware that the bill grew out of the wish of the Board and others who were concerned about the State of Colorado's ability to fully use water allocated to it under interstate compacts. This is an important part of the charge of the Board and is important to all residents of Colorado. There was also a concern about whether or not some of the amounts, which were applied for in some of the recreational flings shortly before the legislation, were reasonable and would efficiently use the water appropriated for a beneficial use. These were legitimate concerns. However, in the legislation the board was required to review applications for their effect on interstate compacts. It was not asked to specifically address the question of quantification. In Factor V it is to address the question of "maximum utilization of waters of the state ". This discussion, [what discussion ?] and therefore the rule, should look into the total impacts on the state, which include its environment and economy. These parameters are not even mentioned in the proposed rule, which could lead one to believe that recreational use as viewed by the Board does not really affect the state's well being in relation to the environment and economy. The consideration of quantity in this context should be made in reference to the quantity requested and not as a result of some preconceived notion of an appropriate amount as seems to have been the case in past recommendations. Our view of the intent of this legislation is that the legislature gave the role to the Board that it thought appropriate at the time. In early versions of the bill the Board sought a larger role in the determination of these rights. The legislature did not agree. The Board should look to the history of the legislation and try to better reflect the intent of the legislature in its rule. The will of the legislature is an expression of the will of the citizenry. It is most appropriate that administrative bodies reflect the will of the legislature. In addition, we feel that the rule does not reflect the changing demography of the state and does not mesh in some ways with the traditional use of the appropriation doctrine. Historically the right to appropriate water is based on the availability of water and not on "future probable uses"