Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. in Fort Collins had impounded water and then allowed safe boat passage. The State argued that the Ft. Collins decision presented a limited exception to what the State asserted was a strict requirement in Colorado law that water right could only be created for water diverted out -of- channel, and urged the Supreme Court to narrowly limit the holding in Ft. Collins to the facts of that case. 35 Moreover, the State argued that the Golden structures exhibited the requisite control only at a 30 cfs low flow level, the flow rate at which water was contained within a low -flow conveyance notch in the structures. If Golden's right was allowed at all, "the water court should have granted a maximum right of 30 cfs. " In the alternative, the State argued that at the very most, the claim must be limited to 200 cfs, the flow rate at which the structures began to create white water features. Finally, the State argued Golden's appropriation was not a reasonable use of water and that either the 30 cfs at which a low flow conveyance channel is created or the 200 cfs at which whitewater features are created would better meet the statutory definition of "beneficial use." The State maintained that the decreed appropriation constituted "virtually the entire hydrograph and all of the water produced in the upper Clear Creek basin." Thus, the Court should have established a "duty of water" for recreational boating that would limit appropriations to a boat passage flow, not the amount necessary to meet the appropriator's intended experience. C. Golden's Response. Responding to the State's arguments, Golden emphasized the Water Court's findings respecting Golden's intent to build a world -class whitewater course, that the course was designed to operate at the decreed flow rate of 1,000 cfs, that the course structures controlled water and created desired whitewater features at this rate of flow, and that this amount of water is available for appropriation. Golden emphasized it was merely exercising its constitutional right to appropriate the waters of the state for beneficial use and that it was doing so fully within the requirements of Colorado water law. Golden argued its in- channel structures met all statutory and case -law requirements of a diversion, and that the test of control established in the Ft. Collins decision had been met. Responding to State arguments concerning the relevance of SB 212, which gave the CWCB exclusive authority to appropriate instream flows, Golden pointed out it was not seeking an instream flow right. It noted Fort Collins had originally filed for an instream flow right but had amended its application to claim an appropriation based on diversion at dams that controlled water for beneficial use. 37 Regarding beneficial use and reasonableness, Golden pointed to the clear evidence of the economic benefits of the course to the City and the undisputed evidence linking the extent of flows to the extent of use. Golden intended to build an elite course, one that would attract boaters from not only the entire Front Range of Colorado but nationally, and even internationally for special events. Viewed from this perspective, the claimed level of flows was reasonable. 35 See State's Opening Brief at 14 -20.; Reply Brief, June 6, 2002 at 16 -17. On this point, the CWCB's argument in the Supreme Court directly contradicted the White Paper it circulated in support of SB 216, which argued that the Ft. Collins decision was a very broad holding that needed to be limited by legislation. Colorado Water Conservation Board, Recreation Water Rights Legislation, January 2001. 36 State's Opening Brief, at 3. "Ft. Collins, 830 P.2d at 920 -21. CLE INTERNATIONAL ■ PAGE K -14 0 COLORADO WATER LAW