Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. cases that they would have before the Colorado Supreme Court. In the end, however, it came down to what was in the best interests of the client, the City of Golden. When analyzed on that basis, the decision was clear. Golden filed a motion to disqualify Justice Hobbs. Although the Supreme Court denied the motion, Justice Hobbs voluntarily recused himself after the motion was filed. 2 Justice Hobbs' nonparticipation would turn out to be a critical moment in the RICD story, as the quest for large in- channel recreation water rights may have been cut short by a Supreme Court loss at such an early stage of the movement. B. The State's Arguments in the Supreme Court. In its Opening Brief in the Supreme Court, the State distilled its trial court arguments and pushed three main theories. First, it argued Golden's water right was an impermissible instream flow, and that recreation was only a recognized beneficial use of water in Colorado when it occurs at an impounded dam. Second, the State argued the structures in the Golden course did not sufficiently control the flows so as to constitute a statutory "diversion" of the type recognized in the Ft. Collins decision. Third, the State asserted Golden's appropriation was unreasonable, and could not meet the statutory definition of beneficial use at C.R.S. § 37- 92- 103(4). Underlying all these arguments, however, and apparent in all the briefing, was the State's sentiment that the water Golden sought needed to be saved for other consumptive uses. While this viewpoint was implicit in the State's arguments on appeal '33 it was explicit in many of the amici briefs, which claimed recreational appropriations would "deprive the citizens of the state of Colorado of their right ... to divert unappropriated water" (Colorado Water Congress, et al. Brief, p. 21), and would impact "the ability of water users in Colorado to develop waters of the state," (Northern Colorado Water Conservancy District, et al. Brief, p. 2). Since any existing water right (absolute or conditional) would already be senior to the Golden course, the argument was that Golden's current beneficial use should be curtailed to save water for future, undefined uses, which these entities believed were more important. On its instream flow argument, the State referenced legislative history related to the State's instream flow program, emphasizing its concern about appropriations of water not based on out -of- channel diversion and control of the water. In particular, it argued the enactment of Senate Bill 212 in 1987, which established the CWCB's exclusive authority to appropriate instream flows, was a legislative repudiation of the Ft. Collins decision, and barred Golden's in- channel diversion water right. After SB 212, the State argued, in- channel recreation rights could not be claimed by any entity other than the CWCB, and the only recreation right that could be claimed by entities other than the CWCB was for water that was physically diverted out -of- channel or stored in an on- channel reservoir. 34 To support its argument that the Golden structures did not "divert" the amount of water claimed, the State emphasized the difference between the dam and notch at issue in Ft. Collins and the different kind of control over the water exhibited by the diversion structures in the Golden boating park. The Golden structures, the State asserted, merely created whitewater features, whereas the notch in the dam 32 Notice of Nonparticipation, April 4, 2002. Justice Hobbs also chose not to participate in the Gunnison case. 33 This view was clear in the State's original expert report by Dr. Shelby, who proposed a "percentage approach" whereby Golden would get 86% of the available water instead of a water right for a fixed appropriation. The basis for this novel concept was to leave "14% of the flow in the river ... for other [future] uses ". At trial, the State prevented a detailed cross - examination of Dr. Shelby on this approach by agreeing to delete portions of the report from the record already in evidence. 34 State's Opening Brief, Feb. 7, 2002 at 13. CLE INTERNATIONAL ■ PAGE K -13 ■ COLORADO WATER LAW