RICD Rules

• Description: RICD
• State: CO
• Date: 11/3/2006
• Author: Ted Kowalski, CWCB
• Title: RICD Rules
• Water Supply Pro - Doc Type: Board Memo

Statement of Basis and Purpose
The 2001 General Assembly enacted Senate Bill 216 ( "S.B. 216 ") to establish a
procedure for the adjudication of recreational in- channel diversion by local governments.
This statutory authority was amended by the General Assembly in 2006 by Senate Bill 37
( "S.B. 37 "). The statutory authority for these rules is found at section 37 -92 -108, C.R.S.
(2006). The purpose of these rules is to establish new procedures and criteria by which
the Board will make its findings of fact to a water court such that the rules will comport
with the recently enacted statutory changes. The Rules incorporate and provide
additional guidance to applicants for recreational in- channel diversions and the water
courts about the specific factors described in section 37- 92- 102(b)(6) that the Board must
consider.
S.B. 216 was enacted to ensure that decrees for recreational in- channel diversions are
integrated into the state prior appropriation system in a manner which appropriately
balances the need for water -based recreational opportunities with the ability of Colorado
citizens to divert and store water under our compact entitlements for more traditional
consumptive use purposes, such as municipal, industrial and agricultural uses. It does not
bestow upon any individual or entity the authority to appropriate water for instream flows
or minimum lake levels. This remains the exclusive prerogative of the Colorado Water
Conservation Board (the "CWCB "). S.B. 37 did not alter the law in this regard.
S.B. 37 eliminated the requirement that the Board must consider: 1) whether the RICD is
for and appropriate stream reach; 2) whether there is adequate access for the RICD; and,
3) whether there are additional factors as provided for in rules adopted by the Board. As
such, these rules eliminated these factors from consideration by the Board.
It is the intention of the CWCB that its review of applications for RICDs may be a
cooperative and collaborative effort between the CWCB and an applicant. The CWCB
encourages applicants to initiate working with the CWCB before a formal application is
filed so that any concerns of the CWCB can be discussed and worked out, if possible, and
the Board confirms its existing policy regarding working with applicants for RICDs,
adopted in November 2001.
The Colorado River Water Conservation District ( "CRWCD ") has sought additional
clarification on Rules 7(a)(viii), 7(a)(ix), 7(c)(i), and 7(c)(ii). These sub - factors explain
some of the information that the Board will consider in determining whether an RICD
will impair the ability of Colorado to fully develop and place to consumptive use its
compact entitlements, and whether an RICD will promote maximum utilization. An
example is Rule 7(a)(viii) that suggests that the Board will consider "whether a RICD
shields waters form a consumptive use that would otherwise be available under a
particular compact." This language was written by the Colorado Supreme Court in the
Gunnison decision, and therefore the language is appropriate. The other statements
provide some general guidance about what the Board will consider. The language should
not be more specific because the Board should have some deference to examine each
RICD on a case -by -case basis. As such, the existing language should be retained.