SB 01-216 Concerning In-Channel Recreational Diversions

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Current Legal Framework accomplish without waste the purpose for which the appropriation is lawfully made.... In the City of Thornton v. City of Fort Collins, the Unless the CWCB is placed in a stewardship role, Colorado Supreme Court granted a water right to reviewing issues of control and water utilization, the City of Fort Collins for a boat chute and fish these issues must be resolved in a water court ladder located within the Cache La Poudre River. proceeding. Such proceedings are very time The Supreme Court held that boat chutes and fish consuming and expensive. The CWCB, in fulfilling ladders are structures that concentrate the flow of its mission, files Statements of Opposition in all water. Therefore, they may qualify as a `structure or cases involving recreational water rights. device' that controls water in its natural course or Given the broad language in the Fort Collins case, location (and thus qualify for a water right) under the CWCB does not have much room to negotiate section 37- 92- 103(7)." agreements that strike a balance between the desire Recognizing that boat chutes may be eligible for a for recreational instream flows and the needs for water right, the concern is ensuring the water right future water development. Legislation to clarify the being requested is reasonable and appropriate to roles and responsibilities of the CWCB, the Water court and water rights applicants is greatly needed. Problems Facing Water Rights Holders and instream flow program by essentially authorizing Applicants private instream flow water rights. Existing law is easily expandable. The Fort Collins Concern has been expressed about these types of holding merely requires a water user to concentrate applications because they could: 1) hinder water the flow of water to serve an intended purpose. development by limiting exchange potential; 2) Currently cities are seeking to protect flows through prevent Colorado from being able to use all of the boat chutes and boulder clusters, others may attempt water resources allocated under existing compact to protect a flow through a reach with control entitlements; and 3) detract from the State's structures as small as a large rock, or an old fallen tree. 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