Instream Flows, Recreation as Beneficial Use, and the Public Interest in Colorado Water Law

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528 WATFR LAW REVIEW Volume 8 (IV) Whether exercise of the [RICD] would cause material injury to instream flow water rights appropriated pursuant to subsections (3) and (4) of this section; (V) Whether adjudication and administration of the [RICD] would promote maximum utilization of waters of the state as referenced in paragraph (a) of subsection (1) of this section; and (VI) Such other factors as may be determined appropriate for evalua- tion of [RICDs] and set forth in rules adopted by the board, after public notice and comment.' Factor I specifically addresses an objection raised by the CWCB in the Golden case." However, the water court concluded in Golden that the instream flow rights sought by the city would not have the effect of ex- porting water outside of the state, because the flows sought lay up- stream from various customary diversions in-state." At the trial, the state even conceded the water rights granted to Golden would have no adverse impact on the state's compact entitlement at issue " Minimum How as a Limitation Colorado state courts could interpret the new designation of the RICD as the exclusive means by which local governments may acquire instream flow rights. The statutory language implies this result by ex- clusively authorizing the CWCB to appropriate instream flows for con- servation " Additionally, the statutes limit the allowable amount of water flow in the definition of RICD to the minimum flow required for a reasonable recreational experience in or on the water. " A plain reading of this definition suggests that the CWCB could attempt to significantly restrict the amount of flow to a level substantially lower than the more desirable seasonal high water mark most towns would seek. In fact, in its first exercise under the new laws, the CWCB recommended 250 cfs of flow for the application by the Upper Gunnison River Water Con- servancy District that requested a range of flows from 270 cfs in Sep- 79. Id. §§ 37 -92- 102(6) (b) (I) -(VI). In addition to the statutory definition of RICDs, regulations provide that in determining RICD applications, the CWCB shall make findings as to the appropriateness of requested RICDs for the intended use, consider- ing in part the nature of the recreational activity and whether the requested RICD may have a negative impact on the environment of the instream flow, including the poten- tial negative effect of constructing the diversions. See 2 COLO. CODE REGS. 408- 3 (7) (b) (vi), (d) (iii -iv) (2001). 80. Golden Decree, supra note 5, para. F(8). 81. Id. 82. Id. 83, COLO. Rhv. STAT. § 37 -92- 102(3) (2004). 84. Id. § 37- 92- 103(10.3). Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 529 tember to 1,190 cfs in May for a boating course in Gunnison.' Accord- ing to the District's manager, the amount recommended by the CWCB is "barely floatable," and that the peak amount requested by the Dis- trict falls well below the present flow of the river at 3,000 cfs. " Judging from the disparity between the CWCB recommendations and the flow amounts requested by the Gunnison District, local entities might find it difficult to anticipate what the CWCB might consider the minimum flow necessary for a reasonable recreational experience. The CWCB itself is fully aware of the looming debate over what the appropriate amount of flow is for RICDs. In a CWCB meeting specifi- cally on the issue of RICDs, and before the Colorado legislature even codified the definition of RICD, the CWCB questioned whether the amount of flow should be the maximum amount necessary to achieve the most desirable boating flows, or the minimum amount needed for just boat passage, or the amount necessary to accommodate world -class water sports.. ' While is no legislative mandate for the water court to adopt CWCB's findings, the law does state that "the water court shall apply the factors [considered by the CWCB] and that "[a]ll findings of fact contained in the recommendation of the [CWCB] shall be pre- sumptive as to such facts, subject to rebuttal by any parry. "' Clearly, the burden lies with the Gunnison District to persuade the water court that a reasonable recreational experience on its watercourse requires higher levels than the minimum flow suggested by CWCB. 85. See Blevins, supra note 16, at 8A. As of the date of this article, the water right to be granted to the District is still undecided after a recent appeal to the state supreme court. See Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 603-04 (Colo. 2005) (remanding the case to the water court with instructions to remand to the CWCB for fact finding). The water court initially deter- mined that the District was entitled to more than 250 cfs recommended by the CWCB, but the CWCB appealed the decision to the Colorado Supreme Court. Id. at 589. The supreme court determined that the CWCB failed to properly make findings of fact as to the minimum flows necessary for the specific uses in the District's application. Id. at 592 ( "the General Assembly intended for the CWCB to analyze the application purely as submitted by the applicant, rather than to objectively determine what recreation experience would be reasonable, and what minimum stream flow would meet that recreational need. "). The CWCB's failure to make its determinations based strictly on the District's application precluded proper adjudication of RICD rights by the water court. Id. at 603. The case is being watched closely by other water districts and cities for an indication of what the practical scope of a recreational instream flow right might be. See Christine Metz, Hearing Set for City Water Request, THE STEAMBOAT PILOT, July 29, 2004, available at http: / /www. steamboatpiolt.com / section /fron tpage_lead /story/24897. 86. Id (quoting Kathleen Curry, manager of the Upper Gunnison River Water Conservancy District). 87. Memorandum from Dan McAuliffe, Dan Merriman & Ted Kowalski, to Colo- rado Water Conservation Board Members, regarding Agenda Item No. 6, Nov. 21 -22, 2000 Board meeting Recreational Flow Discussion of Next Steps, available at http://cwcb.state.co.us/agendas/Nov%2000/AgendaltemNo6.pdf 88. COLO. REv. STAT. § 37 -92- 305(13) (2004). n