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Issue #30 The Water Report
<br />inat
<br />The Water Report
<br />(ISSN pending) is
<br />published monthly by
<br />Envirotech Publications,
<br />Incorporated
<br />260 North Polk Street,
<br />Eugene, OR 97402
<br />Edito David Light &
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<br />Copyright® 2006
<br />Envirotech Publications,
<br />Incorporated
<br />Legal Foundation for Water Rights
<br />The legal remise for approp riating water
<br />racco g P
<br />• n =', rights for a whitewater course is founded upon the
<br />> long- standing recognition of "recreation" as a
<br />¢_
<br />beneficial use of water. Recreational beneficial
<br />use includes rafting, canoeing, kayaking, and other
<br />boating activities that are generally considered to
<br />$ g be non - consumptive uses. Similar to all water
<br />rights, the beneficial use of water for whitewater
<br />g� courses is considered the basis, measure, and Limit
<br />n of its water right. Therefore, this use is also
<br />R entitled to "that amount of water that is reasonable
<br />r and appropriate" to accomplish its intended
<br />}
<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. Stat.).
<br />L 74 r Colorado Whitewater Courses Perfection of a water right to a protected
<br />JVN
<br />} ' 49 Pend
<br />{ - a ing Applications
<br />status requires formation of " i ntent " to appropriate
<br />s ' ♦ Decreed Mitewater Courses
<br />water and subsequent diversion and application to
<br />a beneficial use. For a conventional direct
<br />flow
<br />water right, a "diversion" is the physical removal
<br />of water from the stream through a headgate 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 such removal and their application to beneficial use is confined within the
<br />natural stream channel. The test for a recreational in- channel diversion is "control" of water in the natural
<br />stream channel. Colorado water courts have consistently held that structures built in a stream channel to
<br />create whitewater features exercise "control" in a manner that constitutes a "diversion" of water by the
<br />concentration and direction of flow through a whitewater course (§ 37 -92- 103(7), C.R.S.; City of
<br />Thornton v. City of Fort Collins, 830 P.2d 915, 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 these different appropriations. Instream minimum flow water rights may be
<br />appropriated 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" (§ 37- 92- 103(4), C.R.S.).
<br />Recreational water rights associated with whitewater courses, on the other hand, may be appropriated
<br />only by a municipality, county, water district, water and sanitation district, water conservation district, or
<br />water conservancy district (§ 37- 92- 103(7), C.R.S.). Individuals, businesses, environmental or other
<br />community -based coalitions, and the federal government are examples of entities that are precluded from
<br />appropriating a recreational in- channel water right. To access information regarding the statutes, rules
<br />and policies governing RICDs, see the Colorado Water Conservation Board's website: http:H
<br />ewcb. state- co- us/WaterSupply/RICDRules.htm.
<br />In addition to ownership, the quantity of water sought for appropriation is a significant difference
<br />between the two types of water rights. As indicated in its nomenclature, instream "minimum" flow rights
<br />represent only the amount necessary to provide a baseline flow to serve its intended purpose. As such,
<br />this amount represents some fraction of the total amount of streamflow available. Appropriators for
<br />whitewater courses, however, typically seek water rights that command the entire peak flow of the river to
<br />maximize the recreational experience. The data presented in Table 1 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.
<br />Roles and Responsibilities
<br />Although the technical, Iegal, and administrative issues that are pertinent to whitewater courses are of
<br />interest to municipalities, 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 />CWCB was, until recently, required to consider five areas of inquiry and provide written Findings of Fact
<br />l Copyright© 2006 Envirotech Publications; Reproduction without permission strictly prohibited.
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