Re: Recreational In-Channel Diversion Rules

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0 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. The purpose of these rules is to establish procedures 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. 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 SB 216. More specifically, SB. 216 was enacted to ensure that decrees for recreational in- channel diversions, as recognized by the Colorado Supreme Court in the City of Thornton v. City of Fort Collins case, 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 instream flows or minimum lake levels. This remains the exclusive prerogative of the Colorado Water Conservation Board. SB 216 accomplishes its objectives by expressly providing for the following: i 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 holding an ownership interest in the lands abutting the reach. By way of example, this would mean that 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. It is anticipated that under the law the CWCB will establish further criteria governing such diversions, such as additional guidance upon the appropriate time of day, season of use, length of reach and minimum utilization demands, in order that additional objective benchmarks for judging the propriety of such appropriations are established. 3. The law bestows upon the CWCB the obligation to review applications for recreational in- channel diversions and to submit its recommendations thereon to the water court prior to the entry of any decree therefor. It provides statutory criteria for the CWCB to follow in fulfilling such responsibility. It requires that the water court not only consider the recommendations of the CWCB relative to the grant or denial of