Colorado Whitewater Courses and Water Rights

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t r August 15 2006 The Water Report the state of water administration practice in Colorado will continue to be enhanced and grow by working through the difficult and complex challenges that will inevitably arise in the administration of water rights associated with whitewater courses. . � ivacrrakc a , . Conclusion The rivers and streams that begin in Colorado's alpine headwaters gain strength and volume as they rush down the mountain slopes and meander through the prairies on both sides of the Continental Divide, providing ample opportunities for an increasing number of whitewater enthusiasts seeking to enjoy the flows. Following the capitalistic principle that demand will be supplied in a free market system, local r r communities have followed a similar path through construction of whitewater courses in close proximity to capture the economic benefits afforded by the turbulent water features. As the river waters tumble over numerous and seemingly impenetrable obstacles in a natural channel, the adjudication and water administration process for these recreational in- channel diversions suffer a tortuous path through controversy and debate as to the validity or necessity of these water rights. The purpose of this paper is t`* Q to neither support nor detract from the concept of adjudicating water rights for a whitewater course; rather >� it is to provide a measure of objective information to other water administration officials and policy - `, makers contemplating these issues within their own jurisdictions. Similar to the experience of careening through a whitewater course at peak flows, the application of legal concepts and implementation of daily 4 +� water administration practices to recreational in- channel diversions continues to be an exciting challenge. FOR ADDITIONAL INFORMATION: DR. KEN KNOX, Colorado Division of Water Resources, 303/ 866 -3581 or email: Ken. Knox @state.co.us CWCB wEESITE: Additional RICD information is available online at: http: / /cwcb.state.co.us/WaterSupply/ RICD.htm Ken Knox is the Chief Deputy State Engineer for the State of Colorado. He holds a BS in Chemical Engineering and a MS and PhD in Civil Engineering from Colorado State University. Ken is the Compact Coordinator and Engineer for the nine Interstate River Compacts and one International Treaty that Colorado is a party to and is responsible for litigation and water supply /engineering activities for the Colorado Division of Water Resources. Dr. Knox is also an Adjunct Professor at the University of Denver and teaches graduate -level classes in environmental protection law and other natural resources planning and management classes. Editor's Note: Senate Bill 06 -037, adopted in 2006 by the Colorado General Assembly, significantly amended the RICD program. The legislation, however, only applies to new applications for RICDs filed on or after the effective date of the Act. The legislature changed one ambiguous standard ( "impair "), to require a finding that the RICD would not "materially impair" the ability of Colorado to fully use its compact entitlements. Denial of the application is required if the RICD would "materially impair" that ability (§ 37 -92 -102, C.R.S.). The time of use for RICDs is now limited to April 1 through Labor Day unless the "applicant demonstrates that there will be a demand for the reasonable recreation experience on additional days." RICDs are also limited to one specified flow rate for each time period claimed, with each individual time period not shorter than fourteen days (unless the need for a shorter time period is demonstrated). The bill created a presumption that there will not be any material injury to the RICD from subsequent appropriations or changes of water rights if the effect on the RICD caused by such appropriations or changes doesn't exceed .I% of the lowest decreed rate of flow for the RICD and the cumulative effects do not exceed 2% of the lowest decreed RICD flow rate. § 37 -92 -103, C.R.S. When making a determination of the appropriate flow for any period and whether an RICD is "reasonable," the water court must consider all factors that bear on the reasonableness of the claim, including the "flow needed to accomplish the claimed... use, benefits to the community, the intent of the appropriator, stream size and characteristics, and total streamflow available" during the time periods requested. The water court was also charged with determining the "minimum amount of stream flow" needed for the intended "recreational experience" and must make a finding of the flow rate "below which there is no longer any beneficial use of the water" for the purpose of the right decreed. § 37 -92 -305, C.R.S. Volume requirements (total amount of water used per year) must also be specified in the water court's decree. The legislation states that the total volume is computed by taking the "sum of the flow rates claimed in cubic feet per second for each day... multiplied by 1.98." This provides a volume figure in acre -feet. § 37 -92 -305, C.R.S. Additional limitations must be decreed for an RICD if the total volume of water decreed for the RICD "exceeds fifty percent of 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 the RICD "unless the call would result in at least eighty -five percent of the decreed flow 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. § 37 -92- 305, C.R.S. CopyrightC 2096 Envirotech Publications; Reproduction without permission strictly prohibited.