Notice and Agenda of Sub-Committee Meeting and Recreational Instream Flows

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Recreational Instream Flows - Questions, Concerns, and Statutory Considerations A concept that may be considered in adjudicating a RISF is that the season of use of the right be specified and that the RISF water right be consistently used in a defined pattern if, and when, water is available for the right. The degree of use required may need to be specified to provide the water administrator a standard by which to measure beneficial use and make a determination if a call is valid or futile. Such terms and conditions in the decree will also provide notice of the character of the RISF water right to subsequent appropriators that may be affected by the RISF water right. 5. Under current case law, are filings by an agency of the federal government for RISF rights that are to be used within a federal land reserve permitted as long as the federal agency files for such rights in accordance with Colorado law? Discussion: There would seem to be nothing in existing law that would preclude such a filing. The federal agency would own the underlying land beneath and adjacent to the reach of the stream benefited by the RISF right. Further, since recreation is often cited as a use of federally reserved land, the recreational use of the waters of the streams within the federal reserve would be a credible assertion and could form the basis for appropriation of a RISF right. It should be noted that such RISF rights may be used by the federal government to obtain the. instream flow water rights that the federal government feels it needs to maintain existing flow conditions on a particular federal reserve. By filing and adjudicating RISF rights now or as soon as practical in accordance with existing case law, the federal government will be able to maintain currently existing flow conditions within a federal reserve into the future. This is particularly true if the above - discussed assumption that waste is occurring if recreational use of the waters are not being actively and continuously made is not considered a valid position and administratively enforceable. Such RISF rights appropriations by the federal government may also have the "secondary" benefit of maintaining existing flow conditions for Threatened and Endangered Species in a particular stream upstream of, and through, the benefited stream reach on the federal land reserve. For the sake of example, a RISF appropriation by the Bureau of Land Management (BLM) could be filed on BLM land reserves that straddle the Colorado River downstream of the 15 -Mile Reach. Such an appropriation would have the same, if not more dramatic, impacts on the future development of the Colorado River basin upstream of the Colorado/Utah state line as the proposed 1995 instream flow water rights applications filed by CWCB for the Colorado River Recovery Program. It should be noted that the 1995 filings by the CWCB were later withdrawn because of concerns of the water users within the Colorado River basin and the Colorado River Water Conservation District regarding the impact of those proposed instream flow rights on future water development. Such rights also call into question the ability of Colorado to develop its compact entitlements on the various streams within Colorado that are affected 5-