"Recreational In-Channel Diversions"

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Recreational In- Channel Diversions Cynthia F. Covell, Esq. obtain is for 30 cfs, an amount that is similarly controlled and channeled at low flows through the whitewater course. Alternatively, the State contends that the maximum flow rate for the Golden whitewater course should be 200 cfs, the flow rate at which the whitewater features first appear, if "control" can be demonstrated by creating whitewater features. The State also argues that 200 cfs is the minimum amount necessary to accomplish the purpose of the appropriation. Further, the State contends that a decreed flow rate of 1000 cfs is improper, because at that rate, the whitewater course structures are essentially inundated, so the water flows over the top, and is not captured or controlled. Such high flow rates are far in excess of the minimum amount necessary to accomplish the purpose of the appropriation. An amicus curiae brief was filed by the Rio Grande Water Conservation District, the Southwestern Water Conservation District, the Dolores Water Conservancy District, the Jackson County Water Conservancy District and the Colorado Water Congress, arguing that "control" and "beneficial use" must be carefully defined, that the amounts "controlled" by Golden do not in fact exceed 30 cfs, and that the amounts awarded are not benefici7 An amicus curiae brief filed by the Cache la Poudre Water Users Association and the Thompson Water Users Association argues that the water appropriated by Golden was not reduced to possession, and therefore not truly appropriated. The brief of Colorado Springs Utilities, Northern Colorado Water Conservancy District Municipal Subdistrict, Northern Colorado Water Conservancy District, and Southeastern Colorado Water Conservancy District argues that Golden failed to demonstrate "control" of the water; the terms "control" and "beneficial use" should not be interpreted expansively; and recognition of Golden's decree undermines the doctrine of maximum beneficial use. The Colorado River Water Conservation District and the Town of Basalt, which both have interests in recreational in- channel diversions and support the new legislation (discussed below), argue that water rights for recreational purposes should be adjudicated for reasonable and appropriate amounts to provide minimum stream flows for reasonable recreation experiences in and -on the water; that physical control structures "control" the water if they create flow features that are necessary for a "reasonable recreation experience" and that the Supreme Court should be guided by Senate Bill 216 in its analysis of control and beneficial use. As of this writing, Golden's brief is not yet due. Recreational interests and communities with recreation - based economies are expected to support Golden. Others Follow Golden's Lead In December 2000, applications similar to the Golden application were filed by the cities of Aspen and Breckenridge, the Eagle County Water and Sanitation District (Vail), and by the Browns (citizens in Water Division No. 4). The Browns' application was later withdrawn, but the other entities are currently pursuing their appropriations. The CWCB is one of several objectors in each of these cases. The Aspen whitewater course differs from the Golden course because the water is in fact diverted from the mainstem of the Roaring Fork River into a constructed whitewater channel that runs next to the river. Therefore, the issues of diversion and control raised in the Golden case and the appeal appear at this point to pose less of a threat to this application. The Vail and Breckenridge cases are set for trial in May, 2002. The outcome of al] of these cases may depend upon the outcome of the Golden appeal. The Legislative Response: Senate Bill 216 The Golden case provoked considerable outcry by a number of interest groups. The CWCB was concerned about its exclusive authority to appropriate in- stream water rights, and wanted some authority over recreational in- channel water uses. Headwater communities feared that large downstream whitewater courses could thwart future exchanges and development of junior water rights, thereby choking off future growth. On the