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<br />Issue #30
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<br />The Water Report
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<br />Legal Foundation for Water Rights
<br />The legal premise for appropriating water
<br />rights for a whitewater course is founded upon the
<br />long-standing recognition of ''recreation'' as a
<br />beneficial use of water. Recreational beneficial
<br />use includes rafting, canoeing, kayaking, and other
<br />boating activities that are generally considered to
<br />be non-consumptive uses. Similar to all water
<br />rights, the beneficial use of water for whitewater
<br />courses is considered the basis. measure, and limit
<br />of its water right. Therefore, this use is also
<br />entitled to "that amount of water that is reasonable
<br />and appropriate" tb accomplisb its intended
<br />purpose - but only to the extent it is applied
<br />"under reasonably efficient practices without
<br />waste" (Section 37-92-103(4), Colo. Rev. StaLl.
<br />Perfection of a water right to a protected
<br />status requires fonnation of "intent" to appropriate
<br />t water and subsequent diversion and application to
<br />.' r.~.;.:'; ,'co. --:""~'.:.<.':".; a beneficial use. For a conventional direct flow
<br />water right, a "diversion" is the pbysical removal
<br />of water from the stream through a beadgate or other diversion structure and its conveyance in a ditch.
<br />canal, or pipeline for delivery to its intended beneficial use. By contrast, a recreational instream water
<br />right "diversion" requires no sucb removal and their application to beneficial use is confined within the
<br />natural stream cbannel. The test for a recreational in-cbannel diversion is "control" of water in the natural
<br />stream channel. Colorado water courts bave consistently beld that structures built in a stream cbannel to
<br />create whitewater features exercise "control" in a manner that constitutes a "diversion" of water by the
<br />concentration and direction of Bow through a wbitewatercourse (~37-92-103(7), C.R.S.; City of
<br />Thornton v. City of Fort CoUins, 830 P.2d 9 15, 930 (Colo. 1992)).
<br />It is necessary to carefully portray the distinction between water rights associated for instream
<br />minimum flow water rights and recreational rights for whitewater courses, as well as to describe the
<br />entities that may seek tbese different appropriations. Instream minimum flow water rights may be
<br />appropnated exclusively by the state agency known as the Colorado Water Conservation Board (CWCB)
<br />with intent to "preserve the natural environment to a reasonable degree~ (f 37-92-103(4), C.R.S.).
<br />Recreational water rights associated with whitewater courses, on the other band, may be appropriated
<br />only by a municipality, county, water district. water and sanitation district, water conservation district, or
<br />water conservancy district (f 37-92-103(7), C.R.S.). Individuals, businesses, environment8.1 or other
<br />community-based coalitions, and the federal government are examples of entities that are precluded from
<br />appropriating a recreational in-cbannel water righL ' To access infonnation regarding the statutes, rules
<br />and policies governing RICDs. see the Colorado Water Conservation Board's website: bttp:"
<br />cwcb.state.co.uslWaterSuppJyIRICDRuJes.htm.
<br />In addition to ownership, the quantity of water sought for appropriation is a significant difference
<br />between the two types of water rigbts. As indicated in its nomenclature, instream "minimum" flow rights
<br />represent only the amount necessary to provide a baseline now to serve its intended purpose. As sucb,
<br />this amount represents some fraction of the total amount of streamflow available. Appropriators for
<br />whitewater courses, however, typicaUy seek water rights that command the entire peak flow of the river to
<br />maximize the recreational experience. The data presented in Table I depicts the amount of water sought
<br />for appropriation, the amount decreed, and the historic average streamflow recorded by a gauging station
<br />above the individual whitewater courses in Colorado.
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<br />The Water Report
<br />(ISSN pcodiug) is
<br />published DIIlIIIbJy by
<br />Envirntecb Publications,
<br />IncorporaIed
<br />" 260 NOdb Polk SWet;
<br />EugaJC. OR 97402
<br />. EdIton: David Ugbl &
<br />'.' ',' David Moon
<br />. PIaaae: 5411343-8504
<br />CdIaIar: 5411 517-S608
<br />. Fa: 5411 683-8279
<br />" ,:. enudI:
<br />~t@1nmaiI.a.n
<br />.': :'. 'wdIsIte:...
<br />WWW.TheW~
<br />Subsmptioa Rafek,
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<br />pPd.1&~ Please send
<br />address Comlctious to
<br />The Water Report.
<br />.Nortb Polk Srreer,
<br />geuc, OR 97402
<br />CopyrightO 2006
<br />Envimtech PubliazliOlU,
<br />Incorporated
<br />
<br />
<br />o
<br />
<br />Roles and Responsibilities
<br />Although the technical, legal, and administrative issues that are pertinent to whitewater courses are of
<br />interest to municipalitjes, rafting companies. kayak rental businesses and individuals, this paper focuses
<br />upon the roles and responsibilities of three key entities in Colorado. The first entity offered for
<br />consideration is the Colorado Water Conservation Board (CWCB). Within thirty days of filing an
<br />application in water court for a recreational in-channel diversion, the applicant is required to submit a
<br />copy of the application to CWCB for review. Following a public hearing (if requested by any party),
<br />CWeB was, until recently, required to consider five areas of inquiry and provide wriUen Findings of Fact
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<br />Copyrigbt<9 2006 Envirotech Publications; Reproduction without pennission sbictlv nrohihitptl
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