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<br />- 2 - <br /> <br />8. Requires the water court to consider the Board's findings on the three factors, which findings <br />shall be presumptive as to such facts subject to rebuttal by any party. In addition it will require . <br />the water court to consider evidence and make an affirmativc dctcrmination that the RICD will: <br />a. not materially impair the ability of Colorado to fully develop and place to consumptive <br />bcneficial use its compact entitlements; <br />b. promote maximum utilization of waters of the state; <br />c. include only that reach of stream that is appropriate for the intended use; <br />d. be accessible to the public for the recreational in-channel use proposed; and <br />e. not cause material injury to instream flow water rights appropriated pursuant to section <br />37-92-102(3) and (4). <br />9. Requires the water court, when determining whether the intended recreational experience is <br />reasonable, to consider all of the factors that bcar on the reasonableness of the claim, including <br />the flow needed to accomplish the claimed recreational use, the benefits to the community, the <br />intent of the appropriator, the stream size and characteristics, and the total streamflow available <br />at the control structures during the period or any sub-periods for which the application is made. <br />10. Provides that the court must deny the application if the court determines that a proposed RICD <br />would materially impair the ability of Colorado to fully usc its compact entitlements. <br />II. Requircs the water court to make a finding in the dccree as to the flow rate below which there is <br />no longer any beneficial use of the water at the control structures for the decreed purposes. <br />12. Provides that if the other elements of an RICD are satisfied, the decree shall specify the total <br />volume of water represented by the flow rates decrced for the RICD and defines the total volume <br />as the sum of flow rates in cfs for each day multiplied by 1.98. Moreover, if the court <br />determines that the total volume of water represented by the flow rates decreed for the RICD <br />exceeds fifty percent, the sum of the total average historical volume of water for the stream . <br />segment where the RICD is located for each day on which a claim is made, the decree shall: I) <br />specify that the State Engineer shall not administer a call for a recreational in-channel divcrsion <br />unless the call would result in at least eighty five percent of the decreed rate for the applicable <br />time period; 2) limit the RICD to no more than three time periods; and 3) specify that each time <br />period is limited to one flow rate. <br />13. Provides that the act only will apply to applications for and the administration of new RICDs <br />filed on or after the effective date ofthe act, July I, 2006, and shall not apply to applications for <br />reasonable diligence or to make absolute RICDs that were decreed or applied for prior to the <br />effective date of the act. <br /> <br />Thus, the Board is no longer required to hold a hearing on a RICD water right application. In addition, <br />the Board reviews a RICD application with regard to only three specified statutory factors. The Board's <br />findings are still presumptively valid. The Board is also authorized to participate fully at the water court <br />level. Consequently, the Board's role will be differcnt both in scope and timing. <br /> <br />At the May 2006 Board meeting, the Board exprcsscd an interest in revisiting the Board's RICD rules at <br />the July 2006 Board meeting. The Staff has attached to this memorandum a revised version of the RICD <br />rules, taking into account the statutory changes under Senate Bill 37. In addition, the Staff suggests that <br />rescinding the rules may be another way to proceed, without having any rules in place at all. <br /> <br />The Staff has attached a copy of a proposed rulemaking schedule and a proposed notice of rulemaking for <br />publication. Because of the statutory timeline requirements, the earliest that the Board could hold a . <br />rulemaking hearing regarding RICD rules, in conjunction with a regularly scheduled Board meeting, <br />would be in November. <br />Flood Protection. Water Project Planning and Finance. Stream and Lake Protection <br />Water Supply Protection. Conservation Planning <br />