Comments of the Southeastern Colorado Water Conservancy District August 2005

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2. General Comments Southeastern supports the rule revisions fulfilling the mandate of the CWCB "to secure the greatest utilization" of Colorado's waters and furthering the doctrine of "maximum utilization," specifically, the rule revisions considering whether the basin is over - appropriated in evaluating the reasonableness of an appropriator's sought recreation experience. This type of change is consistent with the Supreme Court's ruling in Upper Gunnison and the District's comments in the prior RICD rulemaking and RICD hearings. However, several of the proposed rules would require that the CWCB consider the reasonableness of an applicant's intended recreation experience and the minimum flow that would meet that experience, even though the Colorado Supreme Court ruled that those determinations are not within the CWCB's purview. We believe that if the CWCB wants to undertake these actions in the RICD process, it should seek the authority to do so through the legislative process instead of adopting rules that conflict with the Supreme Court's ruling in Upper Gunnison. 3. Comments on Specific Rules Rule 4(o). Rule 4(o) defines the term "Reasonable Recreation Experience" as "[a]n experience in and on the water that would allow individuals with suitable skills and abilities relating to the specific recreational activity for which the water right is being sought to partake in that activity. The `reasonableness of an appropriator's sought recreation experience is directly related to the available, unappropriated stream flow.' Colorado Water Conservation Bd. v. Upper Gunnison River Water Conservancy District, 109 P.3d 585 (Colo. 2005)." The Colorado Water Conservation Board ( "CWCB ") defines the term "Reasonable Recreational Experience" in a manner consistent with Senate Bill 216 and the Colorado Supreme Court's holding in Upper Gunnison. This definition reflects an important consideration of the CWCB in the RICD evaluation, the unappropriated flow remaining in the stream or river. Although the CWCB is not to determine the flow rate that constitutes a reasonable recreational experience, the CWCB must evaluate a proposed RICD in the complex system that may exist in the stream or river in question. See Colo. Rev. Stat. § 37 -92 -102 (6) 9b) (I -IV) (2005). This task necessarily includes consideration of the unappropriated flow and the reasonableness of the RICD given the stream or river conditions. Because Rule 4(o) recognizes this consideration, it comports with the Court's decision in Upper Gunnison and furthers the Legislature's intent in Senate Bill 216. Rule 7. Rule 7 states "[t]he Board is required to make certain findings about RICDs. The statutory definition of RICD requires that the applicant claim only the minimum stream flow for a reasonable recreation experience that is diverted, captured, controlled, and placed to beneficial use. Where the existing statutory factors contain the statutorily defined term "RICD" definition, -2-