Comments of the Southeastern Colorado Water Conservancy District August 2005

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change. City of Black Hawk v. City of Central, 97 P.3d 951, 953, 961 (Colo. 2004). Additionally, the Water Court Rules provide that an application need not be republished if the applicant shows that no person will be injured by the change. State Water Ct. Div. Unif. Local R. 4(c). Therefore, as a practical matter, water court applications generally are not amended and republished as a result of settlement negotiations, unless the changes expand on the applicant's claims. This proposed rule does not limit the point at which the CWCB may seek to review the proposed decree. This rule threatens to add costly delays to proceedings if the CWCB reviews all changes to a RICD application. The CWCB's RICD hearing process is costly for all participants, and to add further review proceedings would multiply these costs. Further, Senate Bill 216 mandates the timeline for the CWCB's review of an application as 90 days after the filing of statements of opposition. Colo. Rev. Stat. § 37- 92- 102(6)(c) (2005). Therefore, the statute allows the CWCB one review of the application prior to adjudication. As the court noted in Upper Gunnison, and as dictated in Senate Bill 216, the CWCB "may defend such findings through participation in the water court proceedings." Id.; Upper Gunnison, 109 P.3d at 592. Therefore, rather than engage in successive reviews of the application, which may delay the RICD decree process, the CWCB should either participate in adjudication, including settlement negotiations, or seek a statutory amendment allowing multiple reviews. The CWCB should not attempt to gain authority for multiple reviews by promulgating rules. Accordingly, the CWCB should omit Rule 13(h). 4. Conclusion Rule 4(o) is a good revision to the RICD rules because it recognizes the consideration of the unappropriated flow and the reasonableness of the RICD given the stream or river conditions. Thus, it comports with the Court's decision in Upper Gunnison and furthers the Legislature's intent in Senate Bill 216. The CWCB should revise Rule 7 and its subsections to exclude 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. The revised Rule 7(a), in contrast, is essential to the mandate of the CWCB "to secure the greatest utilization" of Colorado's waters and to the doctrine of "maximum utilization." 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. Rule 13(h) threatens to add costly delays to proceedings if the CWCB reviews all changes to a RICD application and should not be adopted. -7-