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

• Description: SB 01-26
• State: CO
• Date: 10/30/2000
• Author: CWCB, Eric W. Wilkinson
• Title: Notice and Agenda of Sub-Committee Meeting and Recreational Instream Flows
• Water Supply Pro - Doc Type: Board Memo

Recreational Instream Flows - Questions, Concerns, and Statutory Considerations
of adequate notice of the previously existing and unadjudicated exchange at the time of
the RISF appropriation.
8. Is it a pre- requisite for appropriating a RISF right that the appropriator have legal
ownership or control of the lands that underlie and that are adjacent to the
designated benefited reach of the river or stream?
Discussion:
By definition, to realize the beneficial use of a RISF right, that right must be used for
recreation. Within the State of Colorado, the lands underlying and adjacent to the stream
course are considered the property of the land owner, not the property of the state. That is
why recreationalists floating on the stream are considered in trespass if they touch lands
under or adjacent to the stream while progressing along the stream course. Therefore, it
does not appear practical that a RISF right could extend beyond the lands owned or
controlled by the appropriator of the RISF right.
Under state law, an appropriator of water for more conventional beneficial uses, such as
irrigation, has the right to, under very specific guidelines, condemn property held by
others for the purpose of constructing facilities (ditches, canals, pipelines, etc.) necessary
to realize the beneficial use of a water right. This principle, when applied to RISF rights,
may be very onerous to many, if not most, property owners that may be affected by such
a principle. Although case law allows the creation of RISF rights, it is difficult to
interpret existing case law to allow the condemnation of property to allow the unrestricted
beneficial use of the RISF right. Needless to say, this particular issue may be of
significant importance in considering RISF rights.
Other related concerns associated with this issue may include questions such as: does the
existence of a RISF depend directly on it being tied to the underlying land and if the
ownership of the RISF water right differs from that of the underlying land, is the RISF
water right then invalid unless legal agreement is reached with the landowner; or, if the
legal control is by a means other than ownership (such as easement, lease, etc.), does the
RISF water right expire if the legal instrument expires and is not renewed?
9. Is there a question of "duty of water" associated with a RISF right?
Discussion:
This issue is related to the concept of waste. Duty of water is a recognized concept as it
has been applied to conventional irrigation water rights. The concept basically asserts that
no more water than is necessary to accomplish the designated beneficial use can be
appropriated or diverted for that beneficial use.
This concept, when applied to RISF rights may be difficult to implement, but may be
useful in determining the amount of flow allocated to the right, the validity of imposing
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