"Recreational In-Channel Diversions"

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Recreational In- Channel Diversions Cynthia E Covell, Esq. The Fort Collins and Littleton Projects In 1986, in Case No. 86CW371 (Water Division No. 1), the City of Fort Collins applied for two water rights —one for 55 cfs for boating and piscatorial purposes in the channel of the Cache La Poudre River (the "power dam use ") and one for a diversion from the Cache La Poudre River into an old channel to provide habitat for a nature center (the "nature center diversion "). Thornton challenged Fort Collins in water court and claimed that the power dam use was merely an attempt to tie up the river and prevent exchanges through this reach of the river. Thornton also claimed that the power dam use violated the recently passed clarification of the instream flow statute, which stated unequivocally that the CWCB was the only entity that could hold instream flow water rights. The water court for Water Division No. 1 agreed with Thornton and denied the power dam use. In 1992, however, the Colorado Supreme Court reversed that portion of the water court ruling in City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). The Supreme Court held that the power dam use could be a diversion under the law and thus it was not an instream flow water right. The Supreme Court held "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 course or location under section 37 -92- 103(7)." The Supreme Court remanded the case to the water court so that the water court could determine if the Fort Collins structures controlled the water for their intended purposes. After the Supreme Court ruling, Fort Collins settled with Thornton and obtained a decree for a conditional water right for 30 cfs in the summer and 5 cfs in the winter for a boat chute located on the Cache La Poudre River. In 1994, after Fort Collins, the City of Littleton applied for a water right for 100 cfs for its boating course on the South Platte River, in Case No. 94CW273 (Water Division No. 1). The City originally requested water rights for over 20 structures, including rock deflectors and deflector dams. Through negotiation with the City of Denver and the CWCB, Littleton settled on a decree for three diversion structures that spanned the width of the stream, were keyed into the bank, and were not overtopped at 100 cfs. The Golden Whitewater Course The City of Golden filed an application for a recreational whitewater course in 1998, in Case No. 98CW448 (Water Division No. 1). This is the first time such a water right has been sought, and the application carefully followed the guidance given by the Supreme Court in the Fort Collins case. Golden's whitewater course consists of a number of drop structures and deflector structures designed to create a world -class kayak experience in the channel of Clear Creek. Golden's application sought varying flows during each month of the year. The flows sought were as high as 1000 cfs during summer months, and could allow Golden to be able to call all of the available flow in Clear Creek for operation of its whitewater course, thereby effectively curtailing upstream exchanges and junior water rights. Golden sought both absolute water rights for its existing whitewater course, and conditional rights for a planned extension. . Upstream water users feared that approval of the application would give Golden veto power over any new upstream applications, and complete control over future water development in the upper Clear Creek watershed. Ultimately, however, Golden settled with the upstream water users by agreeing to subordinate some of the whitewater course rights to certain upstream decrees and development plans. The upstream users had entered into stipulations with Golden by the time the case was tried in the spring of 2001 before Judge Hays in Water Division No. 1. The only opposers remaining at trial were the CWCB and the State and Division Engineers (herein collectively referred to as the "State. ") At trial, the State questioned, among other things, whether the Fort Collins decision should be followed, whether Golden had controlled or could in fact control the flows it sought, and whether Golden was putting the water to beneficial use. r^r I ran A r1l"% \AIATGD I A \A!