Recreational Instream Flow Workshop Tanscription of Meeting Tape

Home Browse Search

appropriations like the Golden case. The set of questions surrounding those issues is very different in my opinion than the set of questions around should we create something called a recreational instream flow water right. And we need to stay clearly focused on that. We need to keep that clearly in mind. So we all understand what it is that we are talking about. Frankly after I read the written piece I wasn't sure what we were talking about here. So that's why I came to add some distinctions here. I will make it absolutely clear that my own opinion. Trying to create something that might be called a recreational instream flow water right is a huge can of worms. And we can have that discussion; it will be a very complicated discussion and a very long one. If we do it I the context of potential legislation. But is will take legislation to create that animal. Because again it does not exist under current law. Now that's a whole different discussion than the one of what I will call tune up changes that might be needed to existing law. To deal with some of the issues surrounding the questions and pending in channel appropriations cases. Well I don't know what the board is thinking about at this point in time but I think you need to clearly separate these two categories of issues. So as you debate what it is you are thinking about. We know which of those two targets you are shooting at. Because right now I don't know if you are shooting at one the other or both simultaneously. But they are very different targets and you need to keep that in mind. Just a bit of history about the Fort Collins case, Fort Collins started work on a recreational corridor through its city in 1977 1 don't know if it can claim to be the first but it was certainly one of the first cities in Colorado to develop this concept. By the time we filed a water rights application in 1986, Fort Collins had already spent in excess of S4 million developing this recreational corridor where the Poudre-iver runs through the heart of the city. Without water in that river there was no point to the recreation corridor. That's why we litigated and fought through the Supreme Court for a water right to protect a minimal level of flow, because it is 55cfs. In the channel of the Poudre River that's not a lot of water. The CWCB at first opposed it we did work a resolution. And fit ourselves within the existing statute based on the control structures and the control and beneficial use of water within the channel of the river. Before we did that as another alternative avenue for settlement. We invited the CWCB to come and look at the Poudre River where it runs through Fort Collins and see if it could qualify for an instream flow water right. And we were told by the board staff no, you don't meet the CWCB's criteria. So it just doesn't qualify. I tell you this story as a highlight to the point of distinction between an in channel appropriation and an instream flow water right, under existing law if there is to be an instream flow water right, it is for the purposes of protecting the environment to a reasonable degree. Recreation has no role as I read the statute and has historically been applied by the CWCB in developing or quantifying existing or instream flow water rights under existing law. There was simply no way that the current board program could be used to protect the investment Fort Collins had made. We had to build structure we had to control the water we had to prove beneficial use.' One of the things that the non - lawyers in the crowd that haven't read the Supreme Court decision probably don't appreciate is. After winning the basic legal theory. The case was remanded back to the water court. Because there was some questions about whether the specific beneficial uses that Fort Collins claimed were actually capable of being made. There were some lingering issues that the court forced us to answer. Which we did answer and we got a decree by settlement eventually. But there are fairly strict burdens of proof that must be met in order to get an in channel appropriation. One thing I think the board could usefully do is lending some study to some of the questions about proving the elements required for an in channel appropriation. One of the issues is how much is enough? Well existing law says it's the amount that is reasonable and appropriate. Using efficient practices. There is probably been little if any technical studies done to define what those term mean in this context. We have a lot of history to tell us what a duty of water is for irrigated land. We don't have any history to tell us what it is for recreational control structures built within a stream channel. I think there's a purpose that a board could usefully serve. Do some technical studies, participate in water court cases. Make sure that these applications are right on the facts. That's what an in channel appropriation is about. It's no different than any other water right. This is one area where I will agree with Glenn Porzak. It's no different than anv other right in term of being to prove the elements of the appropriation. And I think there is some unplowed ground surrounding some of these issues that could be 29