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F� <br />RECR NTIONAL, IN- CHANNEL. DfVI::IZSI(.)NS <br />' <br />Rules and Regulations <br />Statement of Basis and Purpose <br />' Statement of Basis and Purpose for CWCB Recreational In- Channel Diversion Rules: <br />l . These rules are pr omulgated to carry out the authority and responsibilities of the <br />' Colorado Water Conservation Board ("the board" or "CWCB") pursuant to sections 37- <br />€)2 -102 & 37 -92- 103 & 37 -92 -305, C.R.S. (2001) and 37- 92- 10'2(6)(b), C.R.S. (2005) <br />concerning Recreational In- Channel Diversions ("RICDs "). The 2001 rules have been <br />updated to address pertinent findings and conclusions by the Colorado Supreme Court in <br />Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy <br />District, 109 P.3d 585 (Colo. 2005). <br />0 <br />0 <br />n <br />0 <br />2 In 2001. the General Assembly enacted Senate Bill 216 ( "SB 216 ") to establish a <br />procedure for the adjudication of RICDs by local governments. SB 216 gives the CWCB <br />the responsibility to review applications for recreational in- channel diversions and to <br />submit its findings and recommendations thereon to the water court prior to the entry of <br />any decree. The General Assembly set forth five statutory factors for- consideration by <br />the Cth't_'I3 and the water courts in determining whether an RIC:D application should be <br />granted, granted with conditions, or denied. §§ 37- 92- 102(6)(b) &'37- 92 -305(l 3), CKS. <br />(2004). SB 216 requires that the water court not only consider° the recommenda€tor�s of <br />the CWCB relative to the grant or denial of the application, but that the court specifically <br />tale into account the criteria set forth in section 37- 92- 102(6)(b). §§ 37- 92- 102(6)(b) & <br />37 -92- 305(13). <br />3. in addition to establishing the basic framework for the consideration of RICD <br />applications by the board, these rules identif% other factors adopted by the board for <br />consideration that aid in the analysis of whether the claimed water right is appropriate <br />under the particular factual circumstances. <br />4. These rules also provide guidance about the type of information that will assist <br />the Board in making its findings and recommendation to the water court as it considers <br />the statutory factors set Forth in section 37- 92- 102(6)(b). Because these statutory factors <br />are broad, they require extensive analysis. TO assist the board in making its Findings and <br />recommendation t o the water court concerning: the statutory factors" the rules include <br />"sub- factors" under each major statutory factor. In the board's opinion. these sub - factors <br />are irnportant to the resolution of the statutory, factors. T°he sub - fact €:ors provide notice to <br />all applicants as to what issues should be addressed to meet the major statutory factors. <br />For example, some of the sub - factors establish criteria governing such diversions, such as <br />appropriate times of'day, seasons of use, and lengths of reaches so that there are objective <br />benchmarks for judging the propriety of such appropriations. <br />5. The court in Gunnison, citing legislative history. noted that "the ultimate policy <br />question' was how mach water is needed for legitimate recreational purposes because <br />whitewater courses can be designed to use water at: fifty, cfs and they can probably be <br />