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Q: Is the bill an attempt to punish or stop the City of Golden from getting a water rights for its <br />kayak course? <br />A: No. Golden is exempt from the bill. Only water rights applications filed after December 1, 2000 <br />are subject to the bill. Golden filed its application in 1998. <br />Q: Why is the state coming to legislature at the last minute seeking legislation? <br />A: The CWCB has been discussing this issue since May 2000. The Board meets every other month <br />and this issue has been discussed at every meeting. Two special workshops were also held. The Board <br />took a position that legislation was necessary and that it was best to establish an administrative procedure <br />rather than relying solely on water courts in January 2001. The state has been working with leadership <br />since that time to draft and introduce legislation. The administrative avenue was chosen because water <br />courts may be precluded from considering the public policy implications of granting what could amount <br />to a large instream flow right or performing a gate - keeping function over an entire watershed. Without <br />legislation the Supreme Court will be asked to address this issue through an judicial interpretation of <br />waste and reasonable use or a review of City of Thornton v. City of Ft. Collins to clarify the issues being <br />raised. The best approach is for the legislature to integrate these rights into Colorado water law. <br />Q: What will be the impact of not enacting legislation? <br />A: If the legislation is not enacted the Colorado Water Conservation Board and the State Engineer <br />will be faced with the costs of opposing individual applications in water court to assure the requested <br />appropriation is reasonable and appropriate under Colorado water law. This would entail investigating <br />whether boaters are using water when a call is placed for the water. If water is being called for, and there <br />are no boaters, then the call would be considered waste. Moreover, the state will have to evaluate on a <br />case -by -case basis whether the recreational benefits can be achieved with a portion of the requested water <br />because otherwise, the request may exceed what is reasonable and appropriate under Colorado water law. <br />These are the types of unique administrative issues associated with these types of water rights. <br />Q: Why make reviewing these water rights applications a Board responsibility? <br />A: The bill would permit the CWCB to perform a quasi-judicial function, but due process concerns <br />would be addressed through a rulemaking. The water court will still be the ultimate arbiter of these water <br />rights applications after the Board makes a finding. The Board handles other water rights in a similar <br />manner; namely, thousands of instream flow water rights. Also, not everyone who is adversely impacted <br />by a water rights filing or that wants a water right can afford to go to court. The findings of the Board will <br />significantly cut the time spent in court and should lower the cost of getting a water right because there <br />will be more negotiation rather than litigation. It is proper to review applications for in- channel <br />recreational diversions in an administrative hearing because the nature of obtaining such a right is <br />fundamentally different from other water rights. Given the Board's experience with recreational water <br />rights issues, this added responsibility can be accomplished with its current staff. <br />Q: Why should I trust the CWCB to help me get a right? <br />A: The CWCB recognizes the benefits to communities of having recreational facilities and has a <br />statutory obligation to ensure the "greatest utilization of the waters of the state." The Colorado Supreme <br />Court has recognized that recreational facilities are "structures" that control water and thus qualify for a <br />water right. Since the Board's job is helping utilize water and it loans money for water utilization projects, <br />if local governments were working with the Board, we could make limited resources go farther rather than <br />spending money on lawyers. The agency's approach — in lieu of a trial — will encourage collaborative <br />