Agenda Item 20: RICD Rules Recommendations

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-2- 8. Requires the water court to consider the Board's findings on the three factors, which findings shall be presumptive as to such facts subject to rebuttal by any party. In addition it will require the water court to consider evidence and make affirmative that the RICD will: a. "not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; b. promote maximum utilization of waters of the state; c. include only that reach of stream that is appropriate for the intended use; d. be accessible to the public for the recreational in- channel use proposed; and e. not cause material injury to instream flow water rights appropriated pursuant to section 37 -92- 102(3) and (4)." 9. Requires the water court, when determining whether the intended recreational experience is reasonable, to consider all of the factors that bear on the reasonableness of the claim including the flow needed to accomplish the claimed recreational use, benefits to the community, the intent of the appropriator, stream size and characteristics, and total streamflow available at the control structures during the period or any subperiods for which the application is made. 10. Provides that if the court determines that a proposed RICD would materially impair the ability of Colorado to fully use its compact entitlements, the court shall deny the application. 11. Requires the water court to make a finding in the decree as to the flow rate below which there is no longer any beneficial use of the water at the control structures for the decreed purposes. 12. Provides that if the other elements of an RICD are satisfied, the decree shall specify the total volume of water represented by the flow rates decreed for the RICD and defines the total volume as the sum of flow rates in cfs for each day multiplied by 1.98. Moreover, if the court determines that the total volume of water represented by the flow rates decreed for the RICD exceeds fifty percent the sum of the total average historical volume of water for the stream segment where the RICD is located for each day on which a claim is made, the decree shall: 1) specify that the State Engineer shall not administer a call for a recreational in- channel diversion unless the call would result in at least eighty five percent of the decreed rate for the applicable time period; 2) limit the RICD to no more than three time periods; and 3) specify that each time period is limited to one flow rate. 13. Provides that the act only will apply to applications for and the administration of new RICDs filed on or after the effective date of the act and shall not apply to applications for reasonable diligence or to make absolute RICDs that were decreed or applied for prior to the effective date of the act. Thus, the Board no longer is required to hold a hearing about an RICD water right application. In addition, the Board's review is limited to reviewing an RICD application as it relates to three specified statutory factors, the findings of the Board which are still presumptively valid. The Board is also authorized to fully participate at the water court level. Consequently, the Board's role will be different both in scope and timing. At the May 2006 Board meeting, the Board expressed an interest in revisiting the Board's RICD rules at the July 2006 Board meeting. The Staff has attached to this memorandum a revised version of the RICD rules, taking into account the statutory changes under Senate Bill 37. In addition, the Staff suggests that rescinding the rules may be another way to proceed. While the statutes may not require publishing a notice to rescind rules, the Staff and the Attorney General's Office suggest that publishing a notice to rescind the rules, should the Board choose to proceed in that manner, would be more prudent. Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning