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In conclusion, Rule 7(a) allows the CWCB to consider several factors critical to the <br />evaluation of a proposed RICD. Consideration of these factors allows the CWCB to examine the <br />effect of a RICD on a river or stream. This examination is critical if the CWCB is to determine if <br />the proposed RICD promotes the maximum utilization of Colorado's water. <br />Rule 7(e). Rule 7(e) and its "sub- factors" permit the CWCB to consider numerous <br />factors to promote "maximum utilization of the waters of the State." The factors the CWCB may <br />consider include: probable upstream junior appropriations, probable future change and transfers, <br />effects of federal policies or laws, reasonable means of diversion and control to minimize waste, <br />demand for the recreational activity, limitations on days, seasons, and times of use, the depth and <br />flow rate proposed, and frequency and duration of the requested amount of water. Id. Rule 7(e). <br />Rule 7(e) is important for the CWCB to achieve its statutory objective of "secur[ing] the <br />greatest utilization" of Colorado's waters. Colo. Rev. Stat. § 37 -60 -106 (1) (2004). The rule <br />provides CWCB with a framework to evaluate the potential effect of a proposed RICD. This <br />framework allows consideration of all the circumstances on a stream or river prior to approval of <br />a RICD. According to Upper Gunnison, the CWCB is not to objectively determine the flow rate <br />for an objectively reasonable recreational experience, but the CWCB must still pursue its <br />statutory objective of providing for maximum utilization of waters of the state. See Upper <br />Gunnison, 109 P.3d at 593. Accordingly, the factors considered by the CWCB in this rule permit <br />a responsible evaluation of future problems that an RICD may create. Without a thorough <br />evaluation of the probable effects of a proposed RICD, the CWCB could not promote the <br />maximum utilization of Colorado's water. Because Rule 7 (e) allows the CWCB to consider <br />these effects, it is essential to the evaluation the CWCB must perform under Senate Bill 216. <br />Rules 7(f). Rules 7(f)(i) and (ii) permit the CWCB to evaluate whether a proposed water <br />right in an application meets the definition of RICD. Specifically, under these rules, the CWCB <br />is to consider the flow rate for an objectively reasonable recreational experience and minimum <br />stream flows for objectively reasonable recreational experiences. Id. <br />However, as discussed above in the comment on Rule 7 generally, the role of the CWCB <br />according to the holding in Upper Gunnison is not to determine the flow rate for an objectively <br />reasonable recreational experience or minimum stream flows for an objectively reasonable <br />recreational experience. The Colorado Supreme Court in Upper Gunnison found that "the <br />General Assembly intended for the CWCB to analyze the application purely as submitted by the <br />applicant, rather than to objectively determine what recreation experience would be reasonable, <br />and what minimum stream flow would meet that recreational need." Id. at 593 (emphasis <br />added). Accordingly, the Court anticipated that the determination of the "minimum stream flow <br />for a reasonable recreational experience" for a particular stream or river is a determination that <br />the water court, and not the CWCB, should make. <br />-5- <br />