SB 01-216, Concerning RICD's and Questions and Answers

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Current Legal Framework In the City of Thornton v. City of Fort Collins, the Colorado Supreme Court granted a water right to the City of Fort Collins for a boat chute and fish ladder located within the Cache La Poudre River. The Supreme Court held that boat chutes and fish ladders are structures that concentrate the flow of water. Therefore, they may qualify as a `structure or device' that controls water in its natural course or location (and thus qualify for a water right) under section 37- 92- 103(7)." Recognizing that boat chutes may be eligible for a water right, the concern is ensuring the water right being requested is reasonable and appropriate to Problems Facing Water Rights Holders and Applicants Concern has been expressed about these types of applications because they could: 1) hinder water development by limiting exchange potential; 2) prevent Colorado from being able to use all of the water resources allocated under existing compact entitlements; and 3) detract from the State's accomplish without waste the purpose for which the appropriation is lawfully made.... Unless the CWCB is placed in a stewardship role, reviewing issues of control and water utilization, these issues must be resolved in a water court proceeding. Such proceedings are very time consuming and expensive. The CWCB, in fulfilling its mission, files Statements of Opposition in all cases involving recreational water rights. Given the broad language in the Fort Collins case, the CWCB does not have much room to negotiate agreements that strike a balance between the desire for recreational instream flows and the needs for future water development. Legislation to clarify the roles and responsibilities of the CWCB, the Water court and water rights applicants is greatly needed. instream flow program by essentially authorizing private instream flow water rights. Existing law is easily expandable. The Fort Collins holding merely requires a water user to concentrate the flow of water to serve an intended purpose. Currently cities are seeking to protect flows through boat chutes and boulder clusters, others may attempt to protect a flow through a reach with control structures as small as a large rock, or an old fallen tree. Summary of Recreational Instream Flow Diversion Events Date Applican ylax mum Requested Appropriation River 1986 City of Fort Collins 55 cfs (before the Supreme Court) Cache La Poudre 1992 remanded 30 cfs /5 cfs (awarded by the water court) 1994 Littleton 100 cfs South Platte River 1998 Golden 1000 cfs Clear Creek 2000 Breckenridge 524 cfs Blue River 2000 Eagle River W &SD 400 cfs Gore Creek 2000 City of Aspen 350 cfs Roaring Fork River