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Recreational In- Channel Diversions Cynthia F. Covell, Esq. <br />determining what to recommend to the water court regarding an application for a recreational in- channel <br />diversion. For example, the CWCB, in making its findings may consider, but is not limited to considering, the <br />following in determining whether the adjudication and administration of the recreational in- channel diversion <br />would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact <br />entitlements: <br />1. The amount and location of remaining unappropriated compact entitlement waters in the basin in <br />question and at the RICD [recreational in- channel diversion] point of diversion; <br />2. The proximity of the RICD to the state line; <br />3. The proximity of the RICD to suitable upstream points of diversion or storage which may be <br />utilized by those who would place the water to consumptive beneficial use; <br />4. The existence of suitable downstream points of diversion or storage for consumptive beneficial <br />uses before the water leaves the state; and <br />5. Exchange opportunities within the state that may be adversely affected by the existence of the <br />RICD. <br />Considerations for evaluation of the other criteria identified by Senate Bill 216 are likewise set forth in <br />the rules. The rulemaking meetings and hearing generated controversy because of the apparent subjectivity of <br />some of the statutory criteria, which make it extremely difficult to develop rules for implementation of the <br />criteria, and the overall difficulty of making a meaningful recommendation. In the example above, for instance, <br />how will the CWCB evaluate "exchange opportunities within the state that may be adversely affected by the <br />existence of the RICDT' Opponents point out that Colorado water rights applicants have not historically been <br />required to anticipate unknown future projects in order to obtain a water right; indeed, the whole point of <br />obtaining the water right is to protect one's desired use against the impact of unknown future projects. <br />Cases Filed After Senate Bill 216 <br />It was generally speculated that western slope water users would be the first to file for recreational in- <br />channel diversions under Senate Bill 216, since much of the western slope economy is recreation based, and the <br />eastern slope is, as a rule, wants to develop water supplies for an increasing population. In fact, however, the two <br />applications filed to date have been filed by eastern slope water users. The City of Pueblo has filed an <br />application for a whitewater course on the Arkansas River below Pueblo Reservoir. Pueblo has applied for 100 <br />cfs in the winter months, and 500 cfs in the summer months. The City of Longmont has applied for a whitewater <br />course within its St. Vrain River Greenway, with monthly flow rates ranging from 68 cfs in January. to 1020 cfs <br />in June. Both applications have been submitted to the CWCB. As of this writing, the period for filing statements <br />of opposition in the water court has not yet expired, and the CWCB pre- adjudication process is barely underway. <br />