Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. On December 28, 2000, the Town of Breckenridge filed an application seeking conditional water rights to protect the flows for which the structures had been designed and built. The application provided for the diversion of water of the Blue River at fifteen dam and water deflector structures for use by kayaks, canoes, rafts, and other forms of recreational boating and floating. Claimed beneficial uses for the whitewater park included all forms of boating and floating, piscatorial, and general recreational uses. Objections were filed by the CWCB, the State and Division Engineers, and the Homestake Project. Again, Trout Unlimited filed a supporting statement so that it would have standing to participate in the case. C. Water Court Proceedings. With both the Vail and Breckenridge cases filed in Water Division 5 and involving many of the same parties, Judge Ossola agreed to a case management order in June 2001 under which the trials in the two cases would be held consecutively, beginning with the Vail case. Trial was scheduled for May 2002. The State filed a motion for summary judgment in both cases, asserting the same arguments it was pressing in the Golden appeal that a recreation right could only be decreed as a beneficial use for water that was impounded at a dam. The State also filed a motion in limine asking the Court to exclude any reference to the stipulated decree that the CWCB had consented to for the in- channel diversion water right sought by Littleton for boating structures on the South Platte River. 40 The Northern District filed a motion for summary judgment in the Vail case arguing that the District, as a water and sanitation district organized under the Colorado Special District Act, did not have statutory authority to hold a water right for recreation purposes. Northern further argued that Ft. Collins allowed only a "boat passage" recreation right, and that the Vail claim, if allowed at all, could not be decreed for more than the 30 cfs required to pass a kayak through the boating park. Judge Ossola denied all of the foregoing motions, and both the Vail and Breckenridge cases proceeded to trial. The parties submitted trial briefs generally tracking the arguments that had been made in the Golden case. Town officials from Vail and Breckenridge explained the importance of their respective boating parks to the communities. , Kayakers and local business owners offered supporting testimony. Dr. Danielson, the former State Engineer, once again offered important expert testimony supporting the claimed recreation water rights and generally rebutting the State assertions. For its part, the State continued to assert that the claims were impermissible instream flows, that the boating park structures could not constitute diversion structures sufficient to sustain an appropriative water right, and, in the alternative, if such rights were allowed at all, that the water court must impose a "duty of water" to limit the size of the rights. 40 In 2000, the City of Littleton and the South Suburban Park and Recreation District obtained a decree for three boat chutes located in the South Platte River below Chatfield Dam. The chutes are decreed for 100 cfs. Concerning the Application for YYater Rights of The City of Littleton and the South Suburban Park and Recreation District, Case No. 94CW273, Water Division No. 1. CLE INTERNATIONAL ■ PAGE K -18 ■ COLORADO WATER LAW