BOARD02343

• Board Meeting Date: 7/18/2005
• Description: WSP Section - Upper Gunnison River Water Conservancy District ‎(RICD)‎ - Consideration of Request from the Applicants Relating to the Remanded Hearing
• Board Meetings - Doc Type: Memo

STATE OF COLORADO

Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone: [phone]
FAX: [phone]
www.cwcb.state.co.us

MEMORANDUM

Bill Owens
Governor

TO:
PROM:
DATE:
SUBJECT:

Colorado Water Conservation Board Members
Ted Kowalski, Manager RICD Program
July 11,2005
Agenda Item 19, July 18-19,2005 Board Meeting--
Upper Gunnison River Water Conservancy District (RICD) -
Consideration of Request Prom the Applicants Relating to the
Remanded Hearing

Russel George
Executive Director

Rod Kuharich
CWCB Director

Rick Brown
Acting Deputy
Director

Background

In March 2005, the Supreme Court remanded the Upper Gunnison River Water Conservancy District RICD case
back to the water court with instructions for the water court to remand the case back to the CWCB to make
appropriate findings and recommendations consistent with the Supreme Court decision. There were several
disagreements between the Applicant and the CWCB about how the CWCB should handle the remanded case. The
matters were fully briefed by the parties, which resulted in an order from the water court. The Court ordered that: 1)
the matter is remanded back to the CWCB for factual fmdings on the two contested 1 02(6)(b) factors, consistent
with the stipulations of the parties in this case; 2) the CWCB shall make its findings on the existing record, both the
original hearing before it in September 2002, and the trial transcript in September 2003; 3) no further evidentiary
hearing is required; and, 4) the CWCB shall establish a briefing schedule prior to making its required findings.
Then, the Applicant submitted a request to establish a briefing schedule. Both the Applicant's request and the water
court's order are attached.

The Applicant, among other things, requests that the CWCB: 1) impose a briefing schedule with simultaneous
briefs; and, 2) require that briefs be submitted on or before a date that will give the CWCB adequate time to review
the briefs and issue its findings and recommendation by September 14, 2005. As grounds, therefore, the Applicant
cites the 90-day time frame that exists for submitting findings of fact and recommendations after the filing of
statements of opposition. Further, the Applicant seeks to avoid undue delay.

The Staff cannot agree with the Applicant's requests. First, the statutory language requires the Board to submit its
findings and recommendations within 90 days after the statement of opposition period has run. It is impossible for
the Board to comply with this statutory language, because that time period ended in 2002. Thus, the Board is
operating under the orders of the Supreme Court and the water court. The Supreme Court did not include a timeline,
and the water court stated: "that it is inappropriate for the Court to tell the CWCB when it shall issue its findings and
recommendations. The Staff would argue that it is more important for the CWCB to issue findings of fact and
recommendations that are correct, to the best of the Board's ability, rather than attempt to issue findings of fact and
recommendations as quickly as possible. The Staff would further suggest that the Board has a three-day meeting in
July (which includes the Silverthorne RICD hearing), another three-day meeting in September (with two rule-
making hearings and the continuance of the Chaffee County RICD hearing), and perhaps a special Board meeting in
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