Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. not take into account the intent of the appropriator, the City of Golden. On this point, Dr. Shelby did not consider one of the major elements of his own methodology; namely, the decision environment, which in this instance is the law in Colorado on the appropriation of water. Instead, his opinions were based on a survey of a small group of Course users. The survey results purportedly offered the flow numbers that kayakers prefer for different boating opportunities, but the Court notes that those numbers are inconsistent with the kayakers' narrative comments about the Course, which expressed a clear preference for higher flows. 23 The Court further found that Golden's boating park water right would have no impact on Colorado's ability to fully use its compact entitlement: Because the rights sought in this matter are on Clear Creek in Golden, immediately upstream of major industrial, municipal and agricultural diversions of area in -state water users, it will not negatively impact Colorado's ability to use its compact entitlements. The unrebutted testimony of the former State Engineer, Dr. Danielson, established that the water diverted by the Course ... will be beneficially used and reused by downstream appropriators up to seven times before it reaches the Colorado- Nebraska state line. The State conceded at trial that there is no adverse impact on Colorado's compact entitlement as a result of this water ri ght. The Court entered its decree on June 13, 2001, awarding Golden the full amounts of the absolute and conditional flows claimed. G. Significance of the Golden Decree. The Golden case expanded previous notions of what a recreational water right could be. It took the legal precedent provided in the Ft. Collins decision and developed it into a full- fledged appropriative water right. In place of the notch in the dam that was addressed in the Ft. Collins case, Golden's appropriation involved a series of specially designed instream structures, engineered to generate particular whitewater features favored by boaters at high rates of flow. In effect, each of these structures functioned like a dam, controlling and shaping water flows in the manner desired for the intended boating uses. Rather than a minimum appropriation for safe boat passage, Golden requested and obtained an appropriation consistent with operation of a "world class" boating park. While nonconsumptive, the decreed flows represented most of the hydrograph available in that reach of Clear Creek. The case established the fundamental principle that the reasonableness of the flow rates claimed for a boating park depends on the intent of the appropriator —the kind of recreation and boating experience the appropriator intended to establish with its boating park. In this respect, the Water Court simply confirmed that recreation water rights should be treated like other water rights under the Colorado appropriation doctrine. 23 Id., 19. 24 Notwithstanding this concession in the Golden and other RICD cases, the State continued to maintain compact impairment as one of the principal justifications for SB 216. 25 For example, the appropriator for an agricultural right decides whether to irrigate 10 acres or 1,000 acres. So long as the water can be put to beneficial use without waste, the appropriator has been allowed to make that decision. For boating parks, like other beneficial uses of water, it was shown in the Golden case that the beneficial use increases with increased flows at least up to the design capacity of the course. CLE INTERNATIONAL ■ PAGE K -10 0 COLORADO WATER LAW