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

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can imagine a municipality, or other entity, using such a water right to prevent all new junior exchanges through a designated reach, thus preventing any future water development. There is no specific reason to doubt the sincerity of Littleton, Golden, and the Upper Gunnison River Water Conservancy District regarding their stated goals to establish recreational boating courses, but the effect of these entities' actions is to limit future water development in their respective watersheds. Furthermore, future appropriators of recreational instream flow water rights have no balancing requirements in their appropriations. Unlike the CWCB, who must "correlate the activities of mankind with some reasonable preservation of the natural environment" in its appropriation of minimum stream flows to preserve the environment, entities like Golden and Littleton neither have to be reasonable in their appropriation of water nor have to correlate the activities of mankind with the protection of their instream flows. While there is an argument, as described below, that the definition of "beneficial use" requires that all appropriations be reasonable, it is unclear what would be the outcome of litigation deciding that issue. It is also true that Golden and Littleton are public entities that have constituencies to which they must answer, but those constituencies have a narrow focus. The urgency becomes more apparent when one realizes that any person or entity can file for a recreational instream flow (and essentially prevent all future water development upstream of that stream reach) if it establishes the requisite control. There is nothing stopping either private developers, anti - development organizations, or other entities, from wreaking havoc on Colorado's water resource administration system, and preventing future water development potential in Colorado. Another problem with the existing law is that it is easily expandable. The Fort Collins holding merely requires a water user to concentrate the flow of water to serve an intended purpose. While Littleton and Golden are merely seeking to protect a flow through boat chutes and boulder clusters, others may attempt to protect a flow through a reach with control structures as small as a large rock, or an old fallen tree. OPTIONS Water users are searching for a thoughtful and balanced approach to water use. Some of the examples set forth above demonstrate that the status quo may not serve the best interests of the people of the State of Colorado. That is not to say that recreational instream flows should not be permitted. To the contrary, reasonable and responsible development of recreational instream flows should be encouraged and promoted. Under the existing statutory and regulatory framework, it is not clear whether development of recreational instream flows must be reasonable or responsible. There are a number of possible alternatives that the CWCB members should discuss and consider regarding this issue.