Colorado Whitewater Courses and Water Rights

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August 15, 2006 The Water Report to the water court. The Findings create a rebuttable presumption of fact and include a final recommendation as to whether the application should be granted, denied, or granted with terms and conditions (§ 37- 92- 102(6), C.R.S. (2001)). THE FIVE. FACTORS THAT WARRANTED CWCB CONSIDERATION INCLUDED: 1) Whether the adjudication and administration of the RICD would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements 2) The appropriate reach of stream required for the intended use 3) Whether there is access for recreational in- channel use 4) Whether the RICD use would cause material injury to appropriated instream flow water rights 5) Whether adjudication and administration of the RICD would promote maximum utilization of waters of the State Legislation enacted in the 2006 session (Colorado Senate Bill 06 -037) eliminated the second and third of these factors, leaving consideration of compact development, potential injury to instream flow water rights, and maximum utilization of water as the factors for consideration by the CWCB in future RICD water right applications. To assist water users and provide transparency in its deliberative process, the CWCB promulgated Rules Concerning Recreational In- Channel Diversion that set forth the procedures to follow when applying for an RICD, as well as the procedures and types of information used by the CWCB in making its Findings and recommendations to the water court (2 C.C.R. 408 -3 (2001)). The legislation also eliminated the requirement for a formal hearing before the CWCB. The second key entity within the RICD process in Colorado is the water court. In 1969, the Colorado General Assembly enacted the Water Right Determination and Administration Act, which in part, created the present water court system to replace the adjudication of water rights in individual county district courts. Seven water courts were established, one in each of the seven major river drainage basins within the State. The water judge in each water court retains "exclusive jurisdiction of all water matters within the division" (§ 37 -92 -203, C.R.S.). When adjudicating an RICD water right application, the water judge presumes the Findings of Fact made by the CWCB are true and accurate — though subject to rebuttal by other evidence. THE WATER JUDGE THEN MAKES AN INDEPENDENT FINDING THAT THE RICD WILL: • Not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements • Promote maximum utilization of waters of the state • Include only that reach of stream that is appropriate for the intended use • Be accessible to the public for the recreational in- channel use proposed • Not cause material injury to instream flow water rights (§ 37 -92- 305(13), C.R.S.) The third and final entity involved is the Colorado Division of Water Resources (DWR), also known as the State Engineer's Office. The DWR serves two roles regarding a RICD water right. First, the DWR provides a written consultation report to the water court that addresses the potential impacts of a proposed RICD to existing water rights within the river basin, and suggests terms and conditions that would assist in the administration of the RICD within the priority system. Following adjudication of the RICD water right, the DWR has exclusive responsibility to assure that the RICD — like all other water rights — is incorporated within the stream system and that appropriate administrative actions to fulfill the flow demand for the RICD are applied, based upon its relative priority date to other existing water rights, as well as water availability (§ 37 -92 -501 C.R.S.). Thus, the RICD's water right is fulfilled under the Doctrine of Prior Appropriation ( "first in time, first in right ") if water is available in the stream to provide for the RICD's flow rate based on its seniority rank amongst all water rights. Challenges that Arise from Whitewater Courses The overarching challenge in all water management activities in the and western United States is meeting existing demands with limited water supplies. The inclusion of whitewater courses inevitably increases the acute competition for limited surface water supplies in both the amount of water available for distribution and the extension of time or season when supplies are insufficient to meet demands. Appropriation of a recreational water right for a whitewater course often induces a significant concern by local government officials and property development interests upstream of the course that the appropriation will result in no other water rights being available in the future. As noted above, proponents of whitewater courses typically seek to appropriate a high amount of flow to maximize the turbulence created by the structures built in the course and thereby enhance the recreational experience. The priority date of these RICD water rights is relatively "junior" (i.e., established later in time to other existing water rights). In many Colorado streams there is only enough water available for junior water Copyright© 2006 Envirotech Publications; Reproduction without permission strictly prohibited.