Comments of the Southeastern Colorado Water Conservancy District August 2005

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Rule 7(a). Rule 7(a) is essential to the mandate of the CWCB "to secure the greatest utilization" of Colorado's waters. Colo. Rev. Stat. § 37 -60 -106 (1) (2004). Further, this rule agrees with the doctrine of "maximum utilization," which states "there shall be maximum utilization of the water of this state." Fellhauer v. People, 447 P.2d 986, 994 (Colo. 1968). Rule 7(a) promotes these mandates by providing a framework for CWCB to evaluate a RICD under the concept of beneficial use, thereby providing for efficient use of Colorado's water resources. Colorado water law implements the doctrine of maximum utilization through the concept of beneficial use. The Colorado Supreme Court noted that beneficial use is "the basis, measure, and limit of the appropriation." Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53 (Colo. 1999). Further, Colorado's statutes define beneficial use as the "amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." Colo. Rev. Stat § 37- 92- 103(4) (2004). The nature of a RICD requires consideration of the status of the stream or river and other uses on the stream or river when evaluating the beneficial use. As noted in Upper Gunnison "the reasonableness of an appropriator's sought recreation experience is directly related to the available, unappropriated stream flow." Upper Gunnison, 109 P.3d at 602. Therefore, when evaluating a RICD, the CWCB must consider the factors in Rule 7 (a) because these factors evaluate the current uses of a stream or river. According to Upper Gunnison, the CWCB is not to determine the reasonable recreational experience or the minimum flow for an objectively reasonable recreational experience, but the CWCB must evaluate the factors that help the court determine if a proposed RICD provides a reasonable recreational experience. See Colo. Rev. Stat § 37 -92 -102 (6) (b) (2005). Rule 7 (a) permits the CWCB to consider these factors. Rule 7(a) also acknowledges that many basins in Colorado are governed by a complex mixture of exchanges and augmentation plans that provide for maximum utilization of water. Accordingly, consideration of these exchanges and augmentation plans is critical to evaluation of a proposed RICD. When an over - appropriated basin's senior water rights holders put a call on the river, many junior appropriators meet the needs of the seniors through exchanges and augmentation plans. See, e.g., City of Florence v. Board of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990). A RICD that requires the excessive flow prohibits formation of new exchanges by effectively freezing the flow in the portion of the stream or river with the decreed RICD. This prevents the reallocation of water through exchanges, a practice that helps guarantee maximum utilization. In such a case, the owner of a RICD right controls the whole river or the whole stream regarding any appropriators junior to the RICD. Therefore, a RICD may actually prevent the maximum utilization of water by limiting future exchanges. This scenario is a necessary consideration of the CWCB when evaluating a RICD. Rule 7(a) allows consideration of such a scenario by allowing the CWCB to evaluate whether the basin is over - appropriated, the amounts of the water claimed, and the RICD's effects on other uses of the claimed water. G!