Concerning Recreational In-Channel Diversions: Q & A

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solutions to controversial water rights applications. Joint recommendations can be made to the water courts that will avoid higher cost, time - consuming judicial processes. Q: How could large in- channel diversion rights impact future water development? A: The possible effects 011 water development within a river basin have been described as "potentially devastating." There is no bar from a water developer using these types of water rights to drive up the value of its upstream water rights. There are no built -in protections to allow exchanges to occur. Even if an entity wanted to run an exchange through a stream reach at night, holders of these water rights could prevent the exchange from occurring. If this bill does not pass, these types of water rights would replace our system of allocating water by "first in time, first in right" with what is essentially a permit system (where the holder of the water right has veto power) because the holders of these water rights can control all future upstream water development and land use. Q: Why create a different system for these types of water rights? A: Because recreational in- channel diversions can be cheaply installed and are non - consumptive, and thus they can rely on downstream senior water rights to prove water availability, these types of water rights can lock up all the available water in a watershed and control upstream water and land use decisions. These types of water rights also pose unique administrative problems related to the duty of water, waste, and beneficial use. It is also unclear how much water is needed to achieve the recreational benefits on a given course because the skill levels of boaters vary. The two - tiered approach of the amended bill addresses the relative complexity of applications. Applications for water rights of 50 cfs or less are more likely to be approved by a water court with less opposition from other water rights holders. Applications for more water may affect other water users and impair their ability to put their water rights to beneficial use. This approach, based on a "matter of degrees," will attempt to balance the needs of all affected water users in the stream. Q: Will land use issues remain the purview of local governments? A: Land use issues do remain the purview of local governments. The bill provides the Board with the ability to examine whether access to a given boating course is available or achievable. Q: If these rights are held by municipalities, will they get preferential treatment? A: This issue is addressed in Section 3 of the proposed legislation: "Water rights for recreational in- channel diversions, when held by a municipality or others, shall not constitute a domestic right for purposes of section 6 of Article XVI of the State Constitution." Q: Does the Board have a conflict when considering "material injury to other instream flow rights," as it is the sole entity approved to hold instream flow rights? A: The CWCB has many duties, but the first and foremost duty of the Board is to "promote conservation of the waters of the state of Colorado in order to secure the greatest utilization of such waters." The CWCB's expertise in instream flow rights will help determine whether recreational in- channel diversions may cause material injury to instream flow rights. This bill recognizes that such water rights are different from other water rights and takes advantage of the Board's instream flow expertise to review the application for a recreational in- channel diversion water right to ensure such water rights: • Do not affect the State's ability to develop our water entitlements; • Respect land ownership and protect property rights;