Re: Recreational In-Channel Diversion Rules

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0 Draft Rules Concerning In- Channel Recreational Diversions Summary of Comments from Public Hearings Background In 1992, in Thornton v. Fort Collins, the Colorado Supreme Court held that an entity may obtain a water right for a flow within a stream channel if the entity controls the water to serve the intended purpose. The case was remanded back to the water court so that it could decide if Fort Collins's structures controlled water to serve the intended purposes. Following the remand, Fort Collins obtained a water right for 30 cfs in the summer and 5- cfs in the winter for a boat chute located on the Cache La Poudre River. In 1999, the Division 1 Water court awarded a decree to Littleton for 100 cfs for its kayaking course on the South Platte River. In 2001, the City of Golden obtained a water right decree for up to 1000 cfs in Clear Creek — essentially all the available flow of that creek. Because "control" is not statutorily defined and the Fort Collins decision does not define control, an entity can obtain a water right without having done much to the stream. Moreover, an entity can tie up all exchange potential by claiming a water right for all the available flow. In December 2000, Breckenridge, Aspen, the Eagle County Water and Sanitation District (Vail) and the Browns (citizens in water division 4), filed applications, each claiming a large portion of the available water in the river. In response, in the 2001 legislative session, the Colorado General Assembly acted by passing Senate Bill 01 -216. Senate Bill 216requires the Colorado Water Conservation Board (CWCB) to make findings and recommendations to a water court regarding an application for a recreational in channel diversion. Senate Bill 216 further authorizes the Board to adopt rules to effectuate the bill. The CWCB chose to hold an informal public process to review draft rules before the formal rule - making process begins in fall 2001 (see locations and dates below). This process included public meetings across the state and invitation for written comment via the CWCB web site ( www.cwcb. state. co. us ). While not required by law, the CWCB determined that they wanted public input and review of the draft rules before the initiation of a formal process. Press releases were sent to Colorado newspapers and other media sources prior to public meeting. Notice of the meetings was also sent to the board agenda mailing list. For the Steamboat Springs and Glenwood Springs meetings local boat shops were called and informed of the meetings. In the Arkansas Valley, notice had been put in the local watershed newsletter. Attendance was limited (ranging from 4 in Canon City to approximately 20 in Glenwood Springs), but a range of interests was represented and many valuable comments expressed throughout the meetings. •