"Recreational In-Channel Diversions"

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Recreational In- Channel Diversions Cynthia F. Covell, Es . other hand, transmountain diverters feared that headwater communities could develop whitewater courses and stop transmountain diversions. Others feared that the U.S. Forest Service could use recreational water rights to achieve the bypass flows it had been working so hard to obtain in the face of strong opposition by local interests. Fears were even expressed that other states such as Nevada and California could establish large whitewater courses near the state line, thereby calling water out of the state entirely and risking the loss of Colorado's ability to develop its compact entitlements. In this atmosphere of uncertainty, the General Assembly was asked in the spring of 2001 to consider limits on recreational in- channel diversions. Senate Bill 216 was designed to address these concerns by defining "recreational in- channel diversions," limiting the type of entity that can appropriate such rights, and requiring the CWCB to make certain findings about the appropriation before water court approval of a recreational in- channel diversion. Opponents of the legislation argued that under Fort Collins, a recreational in- channel water right is and should be a water right like any other, and should not be subject procedures not required to obtain other water rights: They also pointed out that recreation is an enormous industry in Colorado, and the water rights needed to support it should not be unduly burdened. The General Assembly passed Senate Bill 216 on the final day of the regular legislative session, and the Governor signed it on June 5, 2001.' Senate Bill 216 defines "recreational in- channel diversions" and sets out procedures for their appropriation. A "recreational in- channel diversion means "the minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures..." Recreational in- channel water rights can only be appropriated by local governmental entities and conditional water rights may not be changed to recreational in- channel diversion purposes. Senate Bill 216 mandates an approval procedure not required for other water rights. Applications for. recreational in- channel diversions filed on or after January 1, 2001 must, within 30 days of filing, be submitted by the applicant to the CWCB for its review. The CWCB must hold a hearing if requested by any party, and make findings of fact and a final recommendation as to whether the application should be granted, granted with conditions, or denied. The CWCB's findings of fact are presumptively valid as to such facts in the water court, subject to rebuttal by any party. The CWCB-and the water court must apply certain factors to evaluate a recreational in- channel diversion. These include (1) whether the adjudication and administration of the recreational in- channel diversion would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (2) the appropriate reach of stream for the intended use; (3) whether there is access for the recreational in- channel use; (4) whether exercise of the recreational in- channel diversion would cause material injury to instream flow rights appropriated by the CWCB; (5) whether adjudication and administration of the recreational in- channel diversion would promote maximum utilization of the waters of the state, and (6) "such other factors as may be determined appropriate for evaluation of recreational in- channel diversions as set forth in rules adopted by the CWCB after public notice and comment." C.R.S. § 37- 92- 102(6)(b). Rules Implementing S.B. 216 During the summer and fall of 2001, the CWCB developed proposed rules for implementing S.B. 216. The CWCB solicited public comment, and final rules were adopted November 8, 2001. A copy is attached. The rules attempt to give the CWCB guidance in the application of the statutory factors it is to consider in 1 S.B. 216 is largely codified at C.R.S. § 37- 92- 102(5) and (6) (2001), but changes were also made to the definitions of beneficial use and diversion in C.R.S. § 37 -92 -103 (2001), and the definition of "recreational in- channel diversion" was added to that section. Finally, the pre- adjudication procedure before the CWCB is.described in C.R.S. § 37 -92- 305(13) - (16) (2001).