"Recreational In-Channel Diversions"

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Recreational In- Channel Diversions C nthia F. Covell, Es q. j "Recreational In- Channel Diversions" presented by Cynthia F. Covell, Esq. Alperstein & Covell Denver Background Diversion out of the Stream as an Element of Appropriation The Colorado Constitution provides that "the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied." Colo. Const. Art. 16, § 6. Diversion of water out of the stream was_ understood to be a fundamental requirement of an appropriation prior to 1973. In that year, the Colorado legislature created an instream flow program which allowed water rights to be appropriated by the Colorado Water Conservation Board ( "CWCB ") for instream uses. Phis legislative scheme, called the instream flow program, authorizes the CWCB to appropriate "such water of natural streams and lakes as the board determines may be required for minimum stream flows or for natural surface water levels or volumes for natural lakes to preserve the natural environment to a reasonable degree." C.R.S. § 37 -92- 102(3). The current definition of "diversion" or "divert" applies to all water right appropriations other than the CWCB's instream flows, and requires removal of water from its natural course or location, or control of 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. C.R.S. § 37- 92- 103(7) (2001). The original instream flow legislation contemplated that the CWCB would be the only entity allowed to obtain an instream flow water right which does not require "diversion." To eliminate any doubt on this point, the General Assembly amended C.R.S. § 37- 92- 102(3) in 1987 to state that "no other person or entity shall be granted a decree adjudicating a right to water or interests in water for instream flows in a stream channel between specific points, or for natural surface water levels or volumes for natural lakes, for any purpose whatsoever." The CWCB and the Instream Flow Program The CWCB has a broad mandate that extends far beyond the instream flow program. It is a board of nine representatives appointed from each of the eight major river basins in Colorado and the City and County of Denver. The Executive Director of Natural Resources Department, the CWCB Director, the Director of the Division of Wildlife, the Director of the Department of Agriculture, the State Engineer, and the Attorney General all sit on the Board as ex officio members. In addition to appropriation and protection of instream flow water rights, the CWCB lends money for water projects, and has responsibilities for flood plain management, interstate compact protection, and water conservation programs. The CWCB also has a general mandate to assure maximum utilization of the state's water resources. In its role as appropriator of instream flows "to protect the natural environment to a reasonable degree," the CWCB must determine that the natural environment will in fact be preserved to a reasonable degree by the water available for the appropriation sought, that there is a natural environment that can be preserved to a reasonable degree with the board's water right, if awarded, and that such environment can exist without material injury to water rights. C.R.S. § 37- 92- 102(3)(c). In order to make its findings, the CWCB must request recommendations from the Colorado Division of Wildlife and Division of Parks and Recreation, as well as the United States Departments of Agriculture and Interior. Since the inception of the instream flow program, the CWCB has appropriated instream flow water rights on over 8,400 miles of stream and 486 natural lakes in the state. C1 F INTFRNaTinKiai - - _ _