Re: Formal Comments, RICD Rules - Laserfiche WebLink

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* Golden, Breckenridge and Eagle River Water and Sanitation District. The Statue was a legislative compromise that recognized the validity of RICDs, limited who could appropriate RICDs, left adjudication of RICDs to the water court and gave CWCB and advisory role on limited issues. Proposed Rules, an improvement over earlier drafts, continue to impermissibly expand the CWCB's role in RICD applications. Particular, purport to limit RICDs to the "minimum" amount of water for a "reasonable" recreational experience, and define a "reasonable" recreational experience to be that of an "average" user. Nothing in the Statute authorizes CWCB to impose such limitations, which unlawfully discriminate against RICDs, ignore the intent of the appropriator and impinge on authority of Water Court. * Upper Gunnison River Water Conservancy District. The proposed rules exceed the authority and intent of the original legislation. However, it is noted that several changes have been made since previous correspondence (such as stating the factors the Board must consider in its findings and limiting required submittals to the application itself). * Northern Colorado Water Conservancy District and its Municipal Subdistrict and Colorado Springs Utility. Comments are based on underlying principle that the rules should reflect the intent of the legislature as reflected in language of SB 216. Close correlation with statutory language can minimize prospect of potential legal challenges. May be advisable to strengthen the Basis and Purpose Statement. This could address some of the earlier written comments submitted by other parties. Four specific comments submitted under Additional Comments. 1) In September 14, 2001 comments raised the issue of absence of indication of the "types of use" associated with an RICD. Is an apparent presumption that the rules covered only "boating" activities the intent of the Board? Could fishing related activities, swimming, scenic viewing, etc. fall in scope of RICDs? This could be a fairly significant issue at the time of the hearing. The Board's initial thoughts would have been very useful. Currently the only constraint on RICDs is in the definition of the term at C.R.S. 37- 92- 103(10.3), that the flow must be diverted, captured, controlled and placed to beneficial use between specific points defined by physical control structures. 2) Pursuant to C.R.S. 37- 92- 102(6)(c), "the Board my defend such findings through participation in the water court proceedings." No further definition of when the Board may defend its findings in this manner in the proposed rules. May indicate in rules that the Board "will" defend its findings. 3) Appropriate to reiterate the "presumption" in the Rules in C.R.S. 37 -92- 305(13) that the Findings of Fact in the Board's recommendation "shall be presumptive as to such facts... ". 4) The draft rule does not contain provision identifying the type of "conditions" the Board may consider imposing in case of an "approval with conditions." Rule could provide for: a) restrictions upon amount and /or rate of flow; b)restrictions upon timing and duration of flow, e.g., time of day, season(s) of use; c) restrictions upon the length of the reach; d) restrictions upon the location and nature of diversion structures; e) restrictions upon the priority of use, including any necessary current or future subordinations; and f) requirements to install measurement devices to aid in administration. b Northwest Colorado Council of Government's Water Quality and Quantity Committee. States that recreation is the backbone of our local economy, with an emphasis on water - related activities. Colorado River Water Conservation District. Participated in development of final version of SB 216. Opposed original version because it was an inappropriate delegation of quasi - judicial authority to a citizen, advisory board and created a dual adjudication system representing redundant expenses to a water right applicant. A reasonable compromise was 25