Recreation Water Rights - "The Inside Story"

Home Browse Search

Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. The case stirred widespread opposition among traditional water interests. Used to viewing the prior appropriation doctrine as the special purview of those whose water uses required removal of water from a stream channel, as well as water consumption, these interests fiercely resisted this new form of in- channel appropriation. Yet, in one of the great ironies of the entire battle over recreational in- channel diversions, the Golden application triggered a legislative initiative that initially sought to legislate such rights out of existence, but instead, ultimately served to confirm and bolster the legal foundation for such rights. III. Senate Bill 216. At the aforementioned March 2001 break in the Golden trial, and perhaps anticipating that it would lose, the CWCB persuaded Senator Lewis Entz and Representative Lois Spradley to introduce a late bill "Concerning the Establishment of a Procedure for the Adjudication of a Recreational In- Channel Diversion by a Local Government." As originally written, the bill (SB 216) would have given the CWCB substantial authority over RICDs. The applicant was to provide the CWCB a copy of its application prior to its filing with the water court. The CWCB was to review the application and make an administrative finding whether or not to grant the application. Water court consideration of any RICD claim was then limited to review on the administrative record, under an arbitrary and capricious standard. The bill would have applied retroactively to all pending RICD applications. In short, the State agency opposing the Golden recreational water right application in court would have been given almost complete authority to decide that Golden's claim should be denied. As substantially revised in the legislative process, the role of the CWCB was altered so that it became simply a fact -finder for the water court. The final bill also limited the class of entities that could hold these rights to local governments (county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district). Factors to be considered in the CWCB review process were identified as (1) potential impairment of Colorado's ability to consumptively use its compact entitlements; (2) the appropriateness of the proposed stream reach; (3) whether there is access for the proposed use; (4) whether the proposed diversion would injure instream flow water rights; and (5) whether the proposed diversion would promote maximum utilization of the waters of the state. 27 Under the final bill the CWCB is to make a recommendation to the water court concerning whether to grant, grant with conditions, or deny the application based on written findings. 28 The CWCB findings were presumptively correct in water court, subject to rebuttal 2 9 The bill defined "recreational in- channel diversion" as "the minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures ... for a reasonable recreation experience in and on the water. " Applications filed prior to January 1, 2001 were exempted from the provisions of the bill, thus "grandfathering" the Golden, Breckenridge and Vail claims from the new legislation, and allowing these cases to be tried under pre -SB 216 water rights law. 26 Section 2, 37- 92- 103(7). 27 Section 1, 37 -92 -102 (6)(b)(I) -(V). 21 Id. at (6)(b). 29 Section 3, 37 -92- 305(13). 30 Section 2, 37- 92- 103(10.3). CLE INTERNATIONAL ■ PAGE K -11 ■ COLORADO WATER LAW