BOARD00045 ‎(2)‎

• Board Meeting Date: 9/19/2006
• Description: Publication - The Water Report - Colorado Whitewater Courses and Water Rights
• Board Meetings - Doc Type: Memo

August 15, 2006

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The Water Report

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to the water court. The Findings create a rebuttable presumption of fact and include a final
recommendation as to whether the application should be granted, denied, or granted with terms and
conditions (~ 37-92-102(6), C.R.S. (2001)).
THE FIVE FACTORS THAT WARRANTED CWCB CONSIDERATION INCLUDED:
I) Whether the adjudication and administration of the RICO would impair the ability of Colorado to
fully develop and place to consumptive beneficial use its compact entitlements
2) The appropriate reach of stream required for the intended use
3) Whether there is access for recreational in-channel use
4) Whether the RICO use would cause material injury to appropriated instream flow water rights
5) Whether adjudication and administration of the RICO would promote maximum utilization of waters
of the State
Legislation enacted in the 2006 session (Colorado Senate Bill 06-037) eliminated the second and
third of these factors, leaving consideration of compact development, potential injury to instream flow
water rights, and maximum utilization of water as the factors for consideration by the ewCB in future
RICO water right applications. To assist water users and provide transparency in its deliberative process,
the CWCB promulgated Rules Concerning Recreational In-Channel Diversion that set forth the
procedures to follow when applying for an RICO, as well as the procedures and types of information used
by the CWCB in making its Findings and recommendations to the water court (2 C.C.R. 408-3 (2001)).
The legislation also eliminated the requirement for a formal hearing before the ewCB.
The second key entity within the RICO process in Colorado is the water court. In 1969, the
Colorado General Assembly enacted the Water Right Oetermination and Administration Act, which in
part, created the present water court system to replace the adjudication of water rights in individual
county district courts. Seven water courts were established, one in each of the seven major river drainage
basins within the State. The water judge in each water court retains "exclusive jurisdiction of all water
matters within the division" (~ 37-92-203, C.R.S.).
When adjudicating an RICO water right application, the water judge presumes the Findings of Fact
made by the ewCB are true and accurate - though subject to rebuttal by other evidence.
THE WATER JUDGE THEN MAKES AN INDEPENDENT ANDING THAT THE RICO WILL:
· Not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use
its compact entitlements
· Promote maximum utilization of waters of the state
· Include only that reach of stream that is appropriate for the intended use
· Be accessible to the public for the recreational in-channel use proposed
· Not cause material injury to instream flow water rights (~37-92-305(l3), C.R.S.)
The third and final entity involved is the Colorado ~ivision of Water Resources (OWR), also known
as the State Engineer's Office. The DWR serves two roles regarding a RICO water right. First, the OWR
provides a written consultation report to the water court that addresses the potential impacts of a proposed
RICO to existing water rights within the river basin, and suggests terms and conditions that would assist
in the administration of the RICO within the priority system. Following adjudication of the RICO water
right, the OWR has exclusive responsibility to assure that the RICO - like all other water rights - is
incorporated within the stream system and that appropriate administrative actions to fulfill the flow
demand for the RICO are applied, based upon its relative priority date to other existing water rights, as
well as water availability (~ 37-92-501 C.R.S.). Thus, the RICO's water right is fulfilled under the
Ooctrine of Prior Appropriation ("first in time, first in right") if water is available in the stream to provide
for the RICO's flow rate based on its seniority rank amongst all water rights.

Challenges that Arise from Whitewater Courses
The overarching challenge in all water management activities in the arid western United States is
meeting existing demands with limited water supplies. The inclusion of whitewater courses inevitably
increases the acute competition for limited surface water supplies in both the amount of water available
for distribution and the extension of time or season when supplies are insufficient to meet demands.
Appropriation of a recreational water right for a whitewater course often induces a significant
concern by local government officials and property development interests upstream of the course that the
appropriation will result in no other water rights being available in the future. As noted above,
proponents of whitewater courses typically seek to appropriate a high amount of flow to maximize the
turbulence created by the structures built in the course and thereby enhance the recreational experience.
The priority date of these RICO water rights is relatively "junior" (i.e., established later in time to other
existing water rights). ]n many Colorado streams there is only enough water available for junior water

Copyright@ 2006 Envirotech Publications; Reproduction without permission strictly prohibited.

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