Recreational Instream Flow Workshop Tanscription of Meeting Tape

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Kelly Custer Thank you Mr. Chairman I think I prefer to remain seated, but I will try to speak up so everyone can hear me. I am Kelly Custer, I represent Trout Unlimited. We are a wide organization. There are approximately 7,600 members in the state of Colorado. We are concerned with conservation of cold water fisheries and their habitat. I thank you for allowing me time your the agenda. But I have to say that there are so many issues that ten minutes is, there's no way. I mean I can hardly read to you my outline in ten minutes. But I will just hit a few points. I read with great interest the staffs 17 page, the subcommittee's 17 page thought piece. I think that the answers to those questions are critical. I think that it will probably determine what our state looks like 100 years from now. I noted that at the outset the discussion paper a presorts to be a sort of neutral listing of issues. Which I think is admirable, however I find in the paper that central questions that must be answered. Is whether or not recreational instream flows represent the highest and best use of our water resources? Um, if that water is ever needed in the future for quote unquote more basic human and societal needs. As I read that question, I read that to be not a neutral discussion point but a value judgement that uses out of stream somehow support more basic human and societal needs than uses instream. And I think that aside from drinking water, which we can all agree is essential. I think that there are are are real issues of value there as to the benefits of instream uses as opposed to important out of stream uses. I think that included in that question also is a very,large question as to what role is appropriate for the board in determining what highest and best uses of water are in our state. That sounds like a huge task to me, I don't know how the board would make such determinations, Would it be based on economics? Would it be based on geography? As in uses at the state line versus uses in the interior of the state and so forth. I think that um I think that what that really is, a public interest test. And that is actually acknowledged in that thought piece. That brings me to my second point. There is no public interest test in our water law. We have a system where we have public rights namely the boards instream flow rights and everything else in the state is a private water right. Those water rights are all treated a like under the law. A claimant must go to water court, prove the elements of an appropriation. Like can and will the amount of water, which will be put to beneficial use without waste. The fact that no injury will occur to other water rights, and so forth. In this process, there is no assessment of highest and best use. There is no assessment of lost opportunity costs, which is another idea raised in the thought piece. There is no review of engineering reports by the Water Conservation Board to assure maximum utilization of the state's water resources. If what you desire to do is create a public interest test or to attempt to create a public interest test to address these kinds of notions when it comes to water rights then we might want to help you do that, frankly. Um, that my third point be the right to divert the unappropriated waters of the state is guaranteed by our constitution. Um diversion as used in the constitution have come to mean a lot of things. It includes control of water within a natural watercourse not only by statute but by Supreme Court decision. The constitutional protection even extends to non - diversionary rights like the board's instream flow rights. I read a lot of the ideas in the thought piece to be a restrictions on the right to divert. And I think there are huge questions as to the constitutionality of some of these restrictions. My fourth point. I believe that all of the issues in the discussion paper can be dealt with under current law. Examples like administration issues, when a call may be placed, where the water right may be measured. The control issue, control of streambanks or land surrounding the flow right. Um, I believe that these can be addressed under current water law. And I believe that they are. My examples the CWCB was a party in the Fort Collins case. You guys settled. You dealt with issues of control and other legal issues and settled. You were a party in the Littleton case you got your issues addressed and you settled. You're a party in the Golden case. It's my understanding that settlement discussions continue in that case. If waste is an issue for example in the Golden case or if there's an issue of a minimum flow needed for a certain use in a certain month. You have the forum to raise that issue. You are in the water court case. You kno%v, g et a judg . A e to deal with that issue. I don't believe that legislation is needed to address any of those issues. I do believe that legislation is dangerous. When you are attempting to restrict a water right I think that there may be unintended consequences there. My last point is about the subcommittee process. The process has not been public until today. I greatly appreciate today's forum and the opportunit% to have this assemblage of folks in one 24