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The CWCB may provide other factors pursuant to Colo. Rev. Stat. § 37-92 - <br />102(6)(b)(IV). However, according to the holding in Upper Gunnison, these additional factors <br />must not permit the CWCB to "objectively determine what recreation experience would be <br />reasonable, and what minimum stream flow would meet that recreational need." Upper <br />Gunnison, 109 P.3d at 593. <br />The CWCB should revise Rule 7(f) to exclude any provisions such as 7(f)(i) and (ii) <br />allowing the CWCB to determine what constitutes either a reasonable recreation experience, or <br />the minimum flow to achieve a reasonable recreational experience. Instead, the rules should only <br />permit the CWCB to evaluate the five statutory factors and the "sub- factors" under each major <br />factor. <br />Rule 7(g). Rule 7(g) permits the CWCB to consider whether the application for a water <br />right meets the definition of a RICD, and this rule specifically directs the CWCB to evaluate <br />whether the applicant is to place the water to beneficial use. In Upper Gunnison, the Colorado <br />Supreme Court held that the definition of beneficial use includes a determination of "minimum <br />stream flow for a reasonable recreation experience in and on the water." Upper Gunnison, 109 <br />P.3d at 598. Therefore, if the CWCB is to determine whether an applicant is putting water to a <br />beneficial use, they must necessarily determine the minimum flow for an objectively reasonable <br />recreational experience. The Court in Upper Gunnison expressly held that the General Assembly <br />did not intend for the CWCB to make this determination. Id. at 593. Therefore, the <br />determination of beneficial use is not within the statutory authority of the CWCB under Senate <br />Bill 216. Accordingly, the CWCB should omit Rule 7(g). <br />Rule 7(h). Rule 7(h) permits the CWCB to determine whether an application is "for a <br />beneficial use as defined in section 37- 92- 103(4)." As discussed in the comment to Rule 7(g), if <br />the CWCB is to determine whether an applicant is putting water to a beneficial use, they must <br />necessarily determine the minimum flow for an objectively reasonable recreational experience. <br />The Court in Upper Gunnison expressly held that the General Assembly did not intend for the <br />CWCB to make this determination. Id. at 593. Therefore, the determination of beneficial use is <br />not within the statutory authority of the CWCB under Senate Bill 216. Accordingly, the CWCB <br />should omit Rule 7(h). <br />Rule 13(h). Rule 13(h) allows the CWCB to review and make findings on the proposed <br />decree that the applicant plans to submit to the Court. The rule states that "[i]f the application as <br />submitted to the CWCB is not the same as a proposed decree submitted by the Applicant to the <br />Water Court, then the CWCB has the right to review the differences between such proposed <br />decree and the Application." Id. <br />In general, a party may revise its intended operation of a water right without amending <br />and republishing an application so long as the original application provided inquiry notice of that <br />IN <br />