Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. Golden also argued the claimed flows were reasonable in the context of Clear Creek, its hydrology, and the existing pattern of water uses. Not only are claimed flows physically available, Golden's analysis determined that virtually all this water would be flowing downstream to meet senior rights anyway. Golden highlighted the trial court finding that in dry years, 100% of the water would be subject to downstream senior calls. Golden also noted the stipulations it had entered with all actual water users. Golden argued the fallacy of the State's diversion and control argument was demonstrated by the fact that it would have been overcome if Golden had simply constructed a parallel kayak course channel next to the stream, and then diverted up to 1,000 cfs of the river into that channel. Although that approach would be wasteful in terms of land use and finances, and would unnecessarily degrade the environment, it would have completely addressed the State's control argument. Rather than go to such unnecessary extremes, Golden followed the express language of C.R.S. § 37 -92- 103(7), and the Ft. Collins decision, and built the structures in the channel. In turn, those dams controlled the water in a manner that created one of the best kayak courses in the country, all without de- watering the stream or harming the environment. Finally, Golden noted the passage of SB 216 rendered moot the State's various policy -based arguments. Golden argued that the Court should not consider the far -flung scenarios regarding future kayak courses at unknown locations and with unknown circumstances that were raised by the State and its supporting amici. The General Assembly had already considered the same scenarios and policy arguments when it passed SB 216. With that bill, the General Assembly acknowledged the validity of RICD water rights while imposing some additional factors for the water court to consider, as well as creating an advisory role for the CWCB. So, while Golden and the other three applications pending at the time of SB 216 were exempted from the legislation, the legislature had already taken up the issue, considered the policy questions, and provided guidance for all future claims. There was no need for the Supreme Court to second -guess what the legislature had just done with SB 216. D. Oral Argument before the Supreme Court. The case was argued on October 2, 2002. The Supreme Court was standing room only, and even the standing room was fully occupied along both walls of the spectator section. More than 200 people somehow managed to find seats. Arrayed in the front row were the State's top water officials, including the executive director of the Colorado Department of Natural Resources, the State Engineer, and the director of the CWCB. For Golden, most of the City Council was present, as were representatives of the Northwest Council of Governments, many other Colorado cities and towns, Trout Unlimited, and representatives of the recreation and environmental communities. Golden's presentation began with the observation that the underlying premise of the State's appeal was that recreation is a lesser form of water use and that limits should be placed on recreation water uses that are not placed on other types of water uses. Golden noted that the Water Court had rejected that premise, and urged the Supreme Court to do the same. Golden's basic argument was that 38 One such scenario was that Las Vegas would throw a few rocks in the Colorado River at Fruita and claim large flows of water to preclude its upstream consumptive use. The threat of Las Vegas constructing the Fruita kayak course was highlighted in the CWCB's January 2001 paper arguing for legislation. CLE INTERNATIONAL ■ PAGE K -15 ■ COLORADO WATER LAW