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RICD as a beneficial use of water in Colorado through SB 216. Rules should foster a <br /> cooperative relationship between the CWCB and applicants and should serve to facilitate <br /> applications for and adjudications of reasonable and responsible RICD water rights. Rules <br /> must comply with requirements of Administrative Procedures Act, specifically including <br /> C.R.S. § 24-4-103(4)(b). The CWCB should encourage interested persons to provide <br /> information relevant to RICD applications,particularly given the short time frame for <br /> findings. The Proposed Rules do not, however, address how members of the public or <br /> Parties may provide infoiniation to the CWCB unless and until a public hearing is requested. <br /> Final rules should contain some provision for providing written information to the CWCB <br /> prior to or in the absence of a public hearing. <br /> SB 216 may be constitutionally "infirm" but that the comments do not address issues of <br /> constitutionality and assume, for purposes of the letter, the constitutionality of SB 216. <br /> (Aspen, Golden, Breckenridge and ERSWD (declare to be unconstitutional)) <br /> Statement of Basis and Purpose <br /> 1■ The Staff recommends making the changes as suggested in the attached redline version of the <br /> Statement of Basis and Purposes to address the concerns expressed below. The Staff further <br /> recommends that the Board authorize Staff, after the hearing, to add a description of the <br /> major issues discussed at the hearing and the Board's final decision thereon to the Statement <br /> of Basis and Purpose. Regarding the comments of the Colorado River Water Conservancy <br /> District that the Statement of Basis and Purpose contains erroneous information and <br /> 410 misrepresentations, it is important to note that the majority of this statement echoes a <br /> statement read into the legislative record by the chief sponsor of the bill, Rep. Lola Spradley. <br /> Rep. Spradley made this statement to describe intent of legislators regarding the bill that <br /> passed both houses. To that extent, the Staff that disagrees that these statements are <br /> misrepresentations or erroneous. <br /> Northern Colorado Water Conservancy District and its Municipal Subdistrict and <br /> Colorado Springs Utility submitted the following comments: <br /> Paragraph 2 provides 4apart that "-it is anticipated that under Iaw-the-CW-CB will <br /> establish further criteria governing such diversions, such as additional guidance..." <br /> Sentence appears inappropriate given that pursuant to the Rules being adopted, the <br /> CWCB "has established" such criteria. <br /> b Modifications to the first sentence in the second to last paragraph as follows: add "herein" <br /> afte r "Finally, nothing..." a nd str ike "in S.B. 216" after "Finally, nothing..." De let e "to <br /> create a water right which did not previously exist by virtue of state Supreme Court <br /> interpretation of Colorado Statute or". It is more appropriate for the Board to comment <br /> here on the intent of its Rules than on the intent of the legislature. Board may not want to <br /> implicitly endorse the Fort Collins decision. One could argue SB 216 reflected the <br /> legislature's dissatisfaction with consequences of that decision and hence the need to <br /> clarify the law in that regard. RICDs are considered to be more in the nature of instream <br /> flow rights for which decrees ordinarily could not be entere ..�c However, the legislature —-- - <br /> saw fit to allow such filings so long as they are subject to the legislatively identified <br /> constraints. This approach may help the Board defend the statue and rules against future <br /> legal challenges. <br /> 111 <br /> 28 <br />