WSP12668

• File Number: 8230.400.30.F
• Description: Durango RICD - Other Reports
• State: CO
• Basin: Colorado Mainstem
• Water Division: 7
• Date: 3/1/2006
• Author: W. W. Wheeler and Associates
• Title: City of Durango Boating Park Hydrology Study
• Water Supply Pro - Doc Type: Report/Study

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RECREATIONAL IN-CHANNEL DIVERSIONS
Rules and Regulations
Statement of Basis and Purpose

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Statement of Basis and Purpose for CWCB Recreational In-Channel Diversion Rules:

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I. These rules are promulgated to carry Oll! the authority and responsibilities of the
Colorado Watcr ConscrvationBoard ("the board" or "CWCB") pursuant to sections 37-
92-102 & 37-92-103 & 37-92-305. eR.S. (2001) and 37-92-102(6)(b). eR.S. (2005)
concerning Recreational In-Channel Diversions ("RICDs"). The 200 I rules havc been
updated to address pertinent t1ndings and conclusions by the Colorado Supreme Court in
Colorado Water Conservation Board v. Upper GUllnison River \Vater Conservancy
District, 109 P.3d 585 (Colo. 2005).

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1 In 2001. the General Assembly cnaeted Senate Bil1216 ("SB 216") to establish a
proccdure fiJr the adjudication of RICDs by local governmel1ls. SB 216 givcs the CWCB
the responsibility to review applications lor recreational in-channel diversions and to
submit its findings and recommendations thereon to the water court prior to the entry of
any decree. The General Assembly set fClIth five statutory factors ICl[ consideration by
the CWCB and the water courts in determining whether an RICO applicatioll should be
granted. granted with conditions, or denied. SS 37-92-1 02(6)(b) & 37-92-305(13). C.R.S.
(2004). SB 216 requires that the watcr colin not only consider the recommendations of
thc CWCB relative to thc grant or dcnial of the application. but that the court speeitieally
take into account the criteria set limh in section 37-92-I02(6)(b). SS 37-92-I02(6)(b) &
3 7-92-305( 13).

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, In addition to establishing the basic ti'amcwork li)r thc eonsidcration of rUCD
applications by thc board, thcse rulcs identify other lactors adopted by the board for
consideration that aid in the analysis of whcther the claimed water right is appropriate
under the particular factual circumstances.

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4. Thesc rules also pl'Ovide guidance about the type of in!c)fmation that will assist
the Board in making its findings and recommendation to the water court as it considers
tbe statutory hetors set limh in section 37-92-102(6)(b). Because thcse statutory factors
are broad. thcy require extensive analysis. To assist the board in making its findings and
recommendation to the \\ ater court concerning the statutory factors. the rules include
"sub-faetors" under each major statutory factor. In the board's opinion, these sub-t'lctors
are important to tbe resolution oftbe statutory 1(!Ctors. The sub-factors provide nOliee to
all applicants as to what issues should be addrcssed to meet the major statutory factors.
For example, some of the sub-factors establish criteria governing such diversions. such as
appropriatc times of day_ seasons of lise, and lengths of reaches so that there arc objective
benchmarks fi)r judging the propriety of such appropriations.

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5. The court in Gunnison. citing legislative history, noted thai '''the ultimate policy
question' \vas how much waler is needed for legitimate recreational purposes because
whitewater courses can be designed to use water at filly cis and they can probably be

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