Re: Agenda Item 9, Recreational Instream Flows, Policy Discussion

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also provides that "...no other person or entity [other than the CWCB] shall be granted a decree adjudicating a right to water or interests in water for instream flows in a stream channel between specific points, ..., for any purpose whatsoever." Section 37- 92- 102(3), C.R.S. (1999). In addition, no claim for an absolute water right may be decreed except to the extent that the waters have been "diverted, stored, or otherwise captured, possessed, and controlled and have been applied to beneficial use." Section 37- 92- 305(9)(a), C.R.S. (1999). No claim for a conditional water right may be decreed except to the extent that it is established that the waters "can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time." Section 37- 92- 305(9)(b), C.R.S. (1999). Beneficial use is "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made...." Section 37- 92- 103(4), C.R.S. (1999). Diversion or divert is defined as "removing water from its natural course or location or controlling water in its natural course or location, by means of a ditch canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device." Section 37- 92- 103(7), C.R.S. (1999). In City of Thornton v. City of Fort Collins, the City of Fort Collins applied for a water right for a boat chute and fish ladder located within the Cache La Poudre River ( "Poudre River "). The Supreme Court reversed the water court ruling denying Fort Collins' application for a conditional water right for boat chutes and fish ladders, and held that "boat chutes and fish ladders, when properly designed and constructed, are structures which concentrate the flow of water to serve their intended purposes. A chute or ladder therefore may qualify as a `structure or device' which controls water in its natural course or location under section 37- 92- 103(7)." Fort Collins at 932. The Court then remanded the case back to the water court to determine "whether the boat chute and the fish ladder can and will put water to beneficial use." Through a stipulation with the CWCB, Fort Collins limited the stretch of protected river to 400 feet. In 1994, the City of Littleton applied for a junior water right within the channel of the South Platte River, for the following uses: recreational, development of a fishery, and fish habitat. This application described a number of boat chutes, rock deflectors, and boulder clusters that concentrate the flow of water to permit safe boat passage and fish passage along this stretch of the South Platte River. The water right seeks an appropriation of 100 c.f.s. year round for boating purposes, and an appropriation of 70 c.f.s. (4/1- 10/31) and 30 c.f.s. (11/1 -3/31) for fishery purposes. These water right amounts are not cumulative (in other words, the maximum that Littleton ever seeks to use is 100 c.f.s.). Because the rock deflectors and boulder clusters would have expanded the Fort Collins decision, Littleton has agreed to reduce its appropriation to cover only three boat chutes. The CWCB and Littleton are currently negotiating some additional terms and conditions to assure that Littleton's application will not expand the Fort Collins case.