BOARD00200

• Board Meeting Date: 7/23/2002
• Description: ISF Section - Case No. 4-02CW038, Upper Gunnison River Water Conservancy District
• Board Meetings - Doc Type: Memo

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experience that the Applicant is seeking and it should be deemed a futile call. However,
Staff does not agree that any flows above 250 cfs should be deemed beneficially used.
Rather, the Staff recommends that if the placing of a call will not produce 500 cfs, that
the call would be futile for that amount of water, but that the call would not be futile as
long as the call will produce 250 cfs, This is referred to by some in the recreational water
right industry as a "trigger claim."

The Staff further recommends that the Applicant's request for general recreational
uses be denied as too vague. It is clear from the Applicant's rebuttal statement that the
Applicant's inclusion of general recreation purposes is an effort to protect flows for
fishing and other water based activities. UGRWCD Rebuttal Statement, page 4, The
Applicant has provided no evidence that the amounts sought are the minimum amounts
for these purposes, nor should the Applicant be granted a water right for purposes that are
described in such general terms, In addition, the granting of a water right for fish would
violate the statutory mandate that the CWCB is the sole entity that is authorized to hold
instream flow water rights for any purpose,

2. Whether the RICD diverts captures and controls water in its natural course or
location with physical control structures.

The Staff recommends a finding that these structures may capture, possess and
control the water if they are constructed as designed, It is important to note that the
General Assembly has specifically recognized that these types of structures can capture,
possess, and control water if they are appropriated in a manner consistent with SB 216,
Similar structures for which water rights are sought prior to the passage of SB 216 could
not be granted water rights because they could not capture, possess, and control the water
for recreational purposes under the law that existed at the time,

3. Whether the adjudication and administration of the RICD would impair the ability
of Colorado to fully develop and place to consumptive Beneficial Use its Compact
Entitlements.

Pursuant to SB 216, the Board must consider the RICD's effect on Colorado's ability to
develop its compact entitlements, There must be a balance between the needs to operate
future exchanges and permit future upstream water development and the desire of the
UGRWCD to provide for a recreational experience. Pursuant to these considerations, the
Staff recommends flow rates of 250 cfs for May, August and September and 500 cfs for
June and July. This provides adequate exchange potential and also provides the Applicant
with the minimum flow necessary for reasonable recreational opportunities.

4. Whether the RICD appropriation is for an appropriate reach of stream for the
intended use.

The Staff recommends a finding that a reach 1/4 of a mile is an appropriate reach of
stream for the intended use. The Staff recommends a finding that the RICD will not affect

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