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

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Recreational Instream Flows - Questions, Concerns, and Statutory Considerations by interstate compacts. 6. Can a storage right be filed for a RISF that would allow water to be stored for RISF use and then later released for instream flow use? Discussion: It would seem to be a valid assertion that water can be stored under existing law for recreational purposes. Because of Colorado's climate, a junior RISF right would not make water available in most river basins beyond the runoff period. A valid argument could be made that to ensure the continued availability of water for RISF, water could and should be stored for later release to enhance RISF when the water to satisfy that right would not naturally otherwise be legally and/or physically available. Depending on the location of the reservoir and the reach of the stream benefited by the RISF, such an arrangement could work to the advantage of the species within the stream and within the riparian habitat (i.e. Threatened and Endangered Species including fish, plants, and animals such as the Prebles Meadow Jumping Mouse). Such "secondary benefits" may greatly increase the likelihood of obtaining the federal permits necessary for the construction of needed storage structures necessary to effectuate such a scenario. On the other hand, such an arrangement could be considered by some to be detrimental to the stream and to the riparian environment. Releases could interfere with fish spawning, fishing access, or other uses or environmental interests that could be affected by the reservoir releases. Such situations must be evaluated for benefits and impacts on a case - by -case basis. 7. In the administration of undecreed exchanges, are those exchanges considered senior to the subsequent decreed RISF right? Must the beneficiary(ies) of such exchanges adjudicate those existing exchanges before they will be recognized by the State Engineer's Office as being senior to the decreed RISF right? Discussion: On the surface, it would seem that the administrative principles that apply to existing undecreed exchanges would also apply to RISF rights. It could be anticipated that the owner of a RISF right may require that an existing exchange be analyzed, "tested,"' and adjudicated by the water court before the RISF right owner would be willing to respect the existence and priority of the previously unadjudicated appropriative right of exchange. Owners of RISF rights may assert a lack s The word "tested" is used to imply the "testing" of the validity of the appropriative right of exchange through the water court process. This could include the presentation of evidence, subject to review by those filing statements of opposition, as to the validity of the exchange. RE