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

• Description: RICD
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 7/17/2000
• Author: Dan McAuliffe, Dan Merriman, Ted Kowalski, CWCB
• Title: Re: Agenda Item 9, Board Meeting, Recreational Instream Flows, Policy Discussion
• Water Supply Pro - Doc Type: Board Memo

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STATE OF COLORADO
Colorado Water Conservation Board
Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone: [phone]
FAX: [phone]
www. dnr. state. co. us/cwcb
Bill Owens
Governor
Greg E.Walcher
MEMORANDUM
Executive Director
Dan McAuliffe
Acting CWCB
To: Colorado Water Conservation Board Members Director
From: Dan McAuliffe
Dan Merriman
Ted Kowalski
Date: July 17, 2000
Re: Agenda Item 9, July 24 -25, 2000, Board Meeting --
Stream and Lake Protection — Recreational instream flows, policy discussion
GENERAL BACKGROUND
At the May 2000 CWCB meeting, the CWCB discussed the recent trend by
municipalities to appropriate instream flow water rights for boating and/or piscatorial
purposes ( "recreational instream flows "). Golden, Littleton, and the Upper Gunnison
River Water Conservancy District have recently filed for recreational instream flows.
Other Colorado municipalities have developed boating courses, and their water rights
applications may soon follow. In a recent law review article, the authors commented on
Golden's 1998 application: "[W]hile the water court may be precluded from considering
the public policy implications of granting Golden what amounts to a 1 ge instream flow
right and a gatekeeping function over an entire watershed, the legislature or the Supreme
Court through judicial interpretation of waste and reasonable use, or a review of City of
Thornton v. City of Ft. Collins, may soon be required to address this important issue."
Such a "wait and see" approach could prove highly detrimental to the people of
Colorado. The purpose of this paper is to generate a discussion about recreational flows,
and their proper integration into Colorado water law.
Current legal framework
Under Colorado water law, the State of Colorado may appropriate "minimum
flows between specific points on natural streams as are required to preserve the natural
environment to a reasonable degree." Section 37- 92- 103(4), C.R.S. (1999). This
exclusive authority is explicitly given to the CWCB in section 37- 92- 102(3). The statute