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Issue #30 The Water Report
<br />f
<br />_. Legal Foundation for Water Rights
<br />`$ .r '` The legal premise for appropriating water
<br />rights for a whitewater course is founded upon the
<br />"- as long- standing recognition of "recreation" as a
<br />beneficial use of water. Recreational beneficial
<br />use includes rafting, canoeing, kayaking; and other
<br />s boating activities that are generally considered to
<br />be non - consumptive uses. Similar to all water
<br />a� rights, the beneficial use of water for whitewater
<br />y e = courses is considered the basis, measure, and limit
<br />'- of its water right. Therefore, this use is also
<br />entitled to that amount of water that is reasonable
<br />x
<br />. `'` t$ and appropriate" to accomplish its intended
<br />purpose — but only to the extent it is applied
<br />"under reasonably efficient practices without
<br />waste" (Section 37- 92- 103(4), Colo. Rev. Stat.).
<br />Colorado WhRewater Courses
<br />r..
<br />41' Perfection of a water right to a protected
<br />status requires formation of "intent" to appropriate
<br />• DecreWWhfte"erCourm
<br />water and subsequent diversion and application to
<br />a beneficial use. For a conventional direct flow
<br />E Z water right, a "diversion" is the physical removal
<br />of water from the stream through a headgate or other diversion structure and its conveyance in a ditch,
<br />t canal, or pipeline for delivery to its intended beneficial use. By contrast, a recreational instream water
<br />y right "diversion" requires no such removal and their application to beneficial use is confined within the
<br />i natural stream channel. The test for a recreational in- channel diversion is "control" of water in the natural
<br />stream channel. Colorado water courts have consistently held that structures built in a stream channel to
<br />y create whitewater features exercise "control" in a manner that constitutes a "diversion" of water by the
<br />�= concentration and direction of flow through a whitewater course (§ 37- 92- 103(7), C.R.S.; City of
<br />I ''.� - Thornton v. City of Fort Collins, 830 P.2d 915, 930 (Colo. 1992)).
<br />jnstr _ It is necessary to carefully portray the distinction between water rights associated for instream
<br />minimum flow water rights and recreational rights for whitewater courses, as well as to describe the
<br />Ritcreahranatn entities that may seek these different appropriations. Instream minimum flow water rights may be
<br />appropriated exclusively by the state agency known as the Colorado Water Conservation Board (CWCB)
<br />with intent to "preserve the natural environment to a reasonable degree (§ 37 -92- 103(4), C.R.S.).
<br />The Water Report Recreational water rights associated with whitewater courses, on the other hand, may be appropriated
<br />(ISSN pending) is only by a municipality, county, water district, water and sanitation district, water conservation district, or
<br />published monthly by water conservancy district (§ 37- 92- 103(7), C.R.S.). Individuals, businesses, environmental or other
<br />Envirotech Publications,
<br />Incorporated community -based coalitions, and the federal government are examples of entities that are precluded from
<br />260 North Polk Street, appropriating a recreational in- channel water right. To access information regarding the statutes, rules
<br />Eugene, OR 97402 and policies governing RICDs, see the Colorado Water Conservation Board's website: http://
<br />Editors- David Light & ewcb. state. co .us /WaterSupply /RICDRules.htm.
<br />David Moon In addition to ownership, the quantity of water sought for appropriation is a significant difference
<br />Phone: 5411343 -8504
<br />Cellular. 541/ 517 -5608 between the two types of water rights. As indicated in its nomenclature, instream "minimum" flow rights
<br />Fam 541/ 683 -8279 represent only the amount necessary to provide a baseline flow to serve its intended purpose. As such,
<br />"email.' this amount represents some fraction of the total amount of streamflow available. Appropriators for
<br />flfewal t'"Oh"ail.com whitewater courses, however, typically seek water rights that command the entire peak flow of the river to
<br />�� �' com maximize the recreational experience. The data presented in Table 1 depicts the amount of water sought
<br />Subscri Rates . for appropriation, the amount decreed, and the historic average streamflow recorded by a gauging station
<br />$249 per year above the individual whitewater courses in Colorado.
<br />Multiple subscription_
<br />rates available: Roles and Responsibilities
<br />Postmaster: Please send Although the technical, legal, and administrative issues that are pertinent to whitewater courses are of
<br />address co er R to
<br />Report, interest to municipalities, rafting companies, kayak rental businesses and individuals, this he Water Report, P g paper focuses P Y' P P
<br />260 North Polk Stmt, upon the roles and responsibilities of three key entities in Colorado. The first entity offered for
<br />Eugene, OR 97402 consideration is the Colorado Water Conservation Board (CWCB). Within thirty days of filing an
<br />CopyrightO 2006 application in water court for a recreational in- channel diversion, the applicant is required to submit a
<br />Envirotech Publications, copy of the application to CWCB for review. Following a public hearing (if requested by any party)
<br />Incorporated Y
<br />CWCB was, until recently, required to consider five areas of inquiry and provide written Findings of Fact
<br />2 CopyrightO 2006 Envirotech Publications; Reproduction without permission strictly prohibited.
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