Comments of the Southeastern Colorado Water Conservancy District August 2005

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that definition must be met. Thus, wherever the term "RICD" appears in a factor, an applicant must show that its RICD meets the definition or it has failed to meet the requirements of the factor." Rule 7 permits the CWCB to determine whether a proposed RICD meets the definition of a RICD, thereby determining the minimum stream flow for a reasonable recreation experience in and on the water, taking on a role the court in Upper Gunnison found to be outside the CWCB's authority. The definition of RICD includes the "minimum stream flow... for a reasonable recreation experience in and on the water." Colo. Rev. Stat. § 37 -92 -103 (10.3) (2005). If the CWCB is to decide if a proposed RICD meets the definition of an RICD, then it must determine the "reasonable recreation experience in and on the water" and the "minimum stream flow required to meet that experience." See Upper Gunnison 109 P.3d at 598. However, the Colorado Supreme Court in Upper Gunnison found that "the General Assembly intended for the CWCB to analyze the application purely as submitted by the applicant, rather than to objectively determine what recreation experience would be reasonable, and what minimum stream flow would meet that recreational need." Id. at 593 (emphasis added). Accordingly, the Court anticipated that the determination of the "minimum stream flow for a reasonable recreational experience" is a determination that the water court, and not the CWCB, should make. According to Upper Gunnison, the CWCB is acting without statutory authority when it determines the reasonable recreational experience or the minimum flow for an objectively reasonable recreational experience. Id. at 593 -4. Therefore, the CWCB exceeds its statutory authority under Senate Bill 216, as interpreted by the Colorado Supreme Court, by evaluating whether a RICD application meets the definition of a RICD. The CWCB rules may provide for consideration of other factors pursuant to Colo. Rev. Stat. § 37 -92 -102 (6)(b)(IV). However, according to the holding in Upper Gunnison, these additional factors must not permit the CWCB to "objectively determine what recreation experience would be reasonable, and what minimum stream flow would meet that recreational need." Upper Gunnison, 109 P.3d at 593. According to Rule 7, the CWCB will now consider, as part of evaluating the beneficial use of an RICD, whether the basin is over - appropriated, the amounts of the water claimed, and the RICD's effects on other uses of the claimed water. These considerations are appropriate under the CWCB's statutory role. The CWCB should revise Rule 7 and its subsections thereby excluding any provisions allowing the CWCB to determine if an applicant meets the definition of and RICD. Instead, the rules should only permit the CWCB to evaluate the five statutory factors and the "sub- factors" under each major factor. -3-