SB 01-216 Concerning In-Channel Recreational Diversions

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Current Legal Framework: In the City of water rights and to ensure that the water right Thornton v. City of Fort Collins, the Colorado Supreme request is "reasonable and appropriate to Court held that boat chutes and fish ladders are accomplish without waste the purpose for which the structures that concentrate the flow of water. Thus, they appropriation is lawfully made...." qualify as a `structure or device' that controls water in Currently, given the broad language in the Fort its natural course or location (and thus qualify for a Collins case, the CWCB does not have much room water right) under section 37 -92- 103(7)." to negotiate agreements that strike a balance Currently cities are seeking to protect flows through between the desire for recreational water rights and boat chutes and boulder clusters, others may attempt future water needs. Legislation to clarify the roles to protect a flow through a reach with control and responsibilities of the CWCB, the water court structures as small as a large rock, or an old fallen and water rights applicants is needed. tree. The CWCB is better equipped than a water court to look to the future to assess the impacts of such Problems Facing Water Rights Holders and prevent Colorado from using water allocated by Applicants: Concern has been expressed about these interstate compacts; and 3) become de facto private types of water rights because they could: 1) hinder instream flow water rights. water development by limiting exchange potential; 2) Summary of Recreational Instream Flow Diversion Events Date Applicant Maximum Requested Appropriation River 1986 City of Fort Collins 55 cfs (before the Supreme Court) Cache La Poudre 1992 remanded 30 cfs /5 cfs (awarded by the water court) 1994 Littleton 100 cfs South Platte River 1998 Golden 1000 cfs Clear Creek 2000 Breckenridge 524 cfs Blue River 2000 Eagle River W &SD 400 cfs Gore Creek 2000 City of Aspen 350 cfs Roaring Fork River Legislation (provision by provision as amended by the Senate Committee on Public Policy & Planning) Section 10 (LEGISLATIVE DECLARATION) 5(a)- Provides that only local governmental entities can obtain these types of water rights. Water rights applicants seeking more than 50 cfs must submit a copy of the application to the CWCB and obtain a determination after a public hearing. 5(b)- Describes the findings that the CWCB must make regarding an in- channel diversion application. (1)- Whether the application would impair Colorado's ability to develop its compact entitlements. (Does the application request all, or a substantial portion of the flow? Where, in relationship to the state line, is the reach ?) (2)- Whether the identified reach is appropriate for the intended use. (Is the length of the reach too long? Is the application just an instream flow ?)