"Recreational In-Channel Diversions"

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Recreational In- Channel Diversions C nthia F. Covell, Es q. Control Issues. Golden argued that its deflector devices and drop structures, like the boat chutes and } fish ladders in the Fort Collins case, qualified as a structures or devices which control water in its natural course . or location under C.R.S.§ 37- 92- 103(7). The State attempted to show that the structures were overtopped at flows much less than 1000 cfs, and thus Golden did not have control of the water at those high flow amounts. Beneficial Use Issues. Beneficial use is a complicated concept in dealing with a recreational right like Golden's. "Beneficial use" is defined as "that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made..." C.R.S. § 37- 92- 103(4). When the Golden case went to trial, no clear guidelines had been established to determine the beneficial use of a whitewater course. Golden's witnesses testified that the whitewater course would be suitable for recreational uses at a variety of flows, but that the higher flows produced the,highest quality of recreational experience, and were necessary for_the world class whitewater competitions Golden intended to host. The State attempted to demonstrate that an appropriation of 1000 cfs was not reasonable, efficient, or without waste because most of the users enjoyed the whitewater course equally, or even more, when the flows were less than 1000 cfs. The State also asked the court to define the duty of water for recreational uses. The Trial Court Decree. Judge Hays' decree was issued on June 13, 2001, and awarded Golden essentially the water rights it had applied for, although fewer absolute rights were awarded than had initially been sought. The court found that Golden had demonstrated the requisite intent to appropriate water for the existing whitewater course in specified amounts for each month of the year, including 1 cfs in May, June and July. The court also determined that the design capacity of the whitewater course is 1000 cfs, and that this amount is reasonable in light of the intended use of the whitewater course. Finally, the Court concluded that the structures comprising the whitewater course control, concentrate and direct the flow of water through the course in a manner that constitutes a "diversion" in accordance with C.R.S. § 37- 92- 103(7) and the Fort Collins case. } The absolute amounts awarded to the course were found to have been beneficially used for recreational boating purposes, and the conditional amounts claimed for both the course and the extension were found to be reasonable and not wasteful because the course and extension will be used more heavily when the flows are higher. The court concluded that the high flows requested were a critical component of the whitewater course as an attraction and amenity for Golden, and that the conditional portions of the water rights decreed can and will be put to beneficial use and not wasted. Finally, the court concluded that the amount of water claimed Golden is reasonable to serve Golden's purposes in making the appropriation. The State appealed the Golden decree. The Golden Appeal The State filed its opening brief on February 7, 2002. The State argues that Golden's water right is an impermissible instream flow, that the water court improperly applied the holding of the Fort Collins case, and that Colorado law prohibits Golden's appropriation because it is unreasonable and excessive, and does not fit within the definition of beneficial use. In arguing that Golden's water right is an impermissible instream flow, the State contends that the 1987 clarification of C.R.S. § 37- 92- 103(7), enacted after Fort Collins made its appropriation, was designed to prohibit a Fort Collins -type appropriation by anyone other than the CWCB. The State notes that notwithstanding the Ianguage "controlling water in its natural course or location" in the definition of "diversion," the case law demonstrates that the concept nevertheless entails diversion. of water out of the stream, or its impoundment for 1 later diversion, if the appropriator is anyone other than the CWCB. Furthermore, the State argues the Fort Collins boat chute was a notch in the dam that controlled and concentrated the flow of water into the boat chute at low flows, so the only decree Golden should be able to