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Recreational Instream Flows - Questions, Concerns, and Statutory Considerations <br />natural environment to a reasonable degree. Another, possibly more applicable, analogy <br />would be a non - consumptive power right that requires a minimum flow to effectively and <br />efficiently turn the turbines. For the same right, the flow capacity of the power plant and <br />associated turbines dictates the maximum amount of water that can be diverted and <br />beneficially used. In this case, if the minimum flow is not physically present or <br />administratively available by imposing an administrative call, then the water <br />administrator would not have to respond to a call by the beneficiary of the hydropower <br />right if that call would produce less water for diversion than the amount needed to <br />accomplish the desired beneficial use. The same principles could be applicable to a RISF <br />right. <br />2. Can the holder of a RISF right place a call on junior diverters if, as a result of that <br />call, the minimum diversion rate specified in the RISF decree would not be made <br />available at the upstream terminus of, or at other points within, the stream reach <br />defined as the benefiting reach of the RISF? <br />Discussion: <br />If a specified minimum diversion rate is needed to accomplish the beneficial use of the <br />RISF right, then a diversion less than that amount will not be sufficient to meet the <br />specified beneficial use. A call imposed by the holder of the RISF right that would result <br />in a divertable flow of less than the specified minimum diversion for the right should, and <br />likely would, be considered a futile call. This reinforces the need on the part of the <br />appropriator, and on the part of the water court, to specify the minimum "diversion" rate <br />for the RISF. This will determine, for administrative purposes, the minimal amount of <br />water that must be made available from a call to ensure it is a valid call. If the decree <br />specifies only the maximum flow rate for the RISF, ambiguities may arise when water <br />administrators are attempting to determine the validity of imposing a call to satisfy the <br />needs of the water right. Specifying only a maximum flow rate for the RISF would imply <br />that any flow greater than zero that would result from imposing a call could, and would, <br />be beneficially used by the RISF beneficiaries. <br />3. If no one is on or in the stream to benefit from the RISF, is the RISF "diversion" <br />actually being put to beneficial use? Can the water right be called, if water is <br />available to satisfy the call, 24 hours a day, 7 days a week even though there are <br />times when there is no one on or in the stream to enjoy or beneficially use the RISF? <br />Discussion: <br />Obviously, the beneficial use of the RISF right is for recreation. Assume a scenario where <br />water is called and made available in the stream at the location of the upstream terminus <br />of the benefiting stream reach and /or through all or a part of the stream reach specified <br />and that water is not being used for the designated recreational use. Under the standards <br />applied to the administration of more traditional water rights, the water made available to <br />the RISF by the administrative call is not being beneficially used and would be <br />ka <br />