Statement of Basis and Purpose and RICD Diversion Rules

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Statement of Basis and Purpose The 2001 General Assembly enacted Senate Bill 216 ( "S.B. 216" or "the law ") to establish a procedure for the adjudication of recreational in- channel diversion by local governments. The statutory authority for these rules is found at section 37-92 - 102(6)(b)(VI), C.R.S. (2001). The purpose of these rules is to establish procedures and criteria by which the Board will make its findings of fact and final recommendations to a water court as to whether a recreational in- channel diversion application should be granted, granted with conditions, or denied. These Rules fulfill the responsibility of the Board under section 37- 92- 102(6)(b) to set forth in rules, after public notice and comment, the factors to be utilized in evaluating RICDs. The Rules incorporate and provide additional guidance on the specific factors in section 37- 92- 102(b)(I) through (V). In addition, these rules provide further guidance to applicants for recreational in- channel diversions and the water courts about the factors that the water court must consider under S.B. 216. Nothing in these Rules is intended to modify existing appropriative rights or impact future appropriative rights for traditional consumptive uses through the imposition of limitations upon the exercise of such rights for the benefit of public interests under a public trust theory, or to incorporate in any way such a theory into the adjudication or administration of water rights under Colorado law. These Rules establish specific procedures that an applicant for a RICD must undergo once it has filed an application. More specifically, S.B. 216 was enacted to ensure that decrees for recreational in- channel diversions are integrated into the state prior appropriation system in a manner which appropriately balances the need for water -based recreational opportunities with the ability of Colorado citizens to divert and store water under our compact entitlements for more traditional consumptive use purposes, such as municipal, industrial and agricultural uses. It does not bestow upon any individual or entity the authority to appropriate water for instream flows or minimum lake levels. This remains the exclusive prerogative of the Colorado Water Conservation Board (the "CWCB "). S.B. 216 accomplishes its objectives by expressly providing for the following: 1. It specifically limits the category of entities that can obtain such decrees to those public and quasi - public entities identified in the law. 2. It defines "recreational in- channel diversions" such that only the "minimum" flow necessary to support the recreational activity can be sought, with physical control structures defining the upstream and downstream extent of the right. The waters are to be controlled by the applicant in the identified reach, with applicant having an interest in the lands abutting the reach. By way of example, this would mean that an applicant could potentially obtain a right to the minimum amount of water necessary to float a kayak through a constructed course consisting of boat chutes within the reach, such that there would exist a reasonable recreation experience, while ensuring that the entire flow of the reach is not dedicated to this right