Recreation Water Rights - "The Inside Story"

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Rdcreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. D. The Water Court Decisions The District Court Judge for Water Division No. 5 awarded decrees for the claimed flow rates for both boating parks, up to 400 cfs for Vail and 500 cfs for Breckenridge between the hours of 6:00 a.m. to 8:00 p.m. Moreover, the Court specifically found that the District had the authority needed to apply for, and hold, recreational water rights for customers within its service area. The Court only . denied piscatorial uses as an independent basis for the claimed water rights. In granting the recreational water rights, Judge Ossola entered decrees which contained many of the same factual findings and determinations reached by Judge Hays in the Golden case. The State immediately filed appeals to the Colorado Supreme Court in both cases. E. The Vail and Breckenridge Appeals The briefing generally tracked the same arguments made in the Golden case. Among other issues, the State argued that prior to enactment of SB 216 there was no authority to allow any party other than the CWCB to appropriate RICDs. Vail concluded its argument with the statement: "People do not travel to Vail to kayak the Park for its minimum water." 1. Oral Argument Before the Colorado Supreme Court The Court set oral argument for both cases for May 3, 2003. While the Golden case had already been argued, it was clear the Court was considering all three cases together. Counsel for Vail and Breckenridge began by noting the Court was considering two more decisions by a different water judge that fully upheld claims for recreational in- channel water rights as a matter of basic Colorado water law, just as the Judge had in the Golden case. Counsel recounted why these decisions had been made, and why they should be upheld. Beginning with the issue of diversion, he pointed out that under both the Colorado statutory definition of diversion and the interpretation of this provision in the Ft. Collins decision, in- channel diversions exist where (1) a structure (2) functions as designed (3) to control water for beneficial use. With respect to the reasonableness of the claims, counsel noted that, after lengthy trials, two different water court judges in three cases held the amounts claimed to be reasonable within the factual context of each case. Reasonableness must be evaluated in the context of the appropriators' intent to develop the best possible boating park, and the amount of water appropriated was in fact the minimum necessary for the intended purpose. Moreover, the evidence of the direct correlation between flow and use was unrebutted. Next, counsel argued the passage of SB 216 had undercut the entire basis for the State's appeals. The bill clearly confirmed the legitimacy of recreational in- channel diversions. Vail and Breckenridge returned to what they termed the "essence" of the State's opposition: that recreation is a lesser form of water right that should be entitled to a lesser amount of water. The State sought to limit recreation to some minimum experience, without regard for the intentions of the appropriator. In fact, towns like Vail and Breckenridge provide a world -class recreational experience for skiing, a quality experience essential to their economies. Recreation represents the economic future for resort communities in Colorado, and increasingly the entire State. Whitewater parks bring people to CLE INTERNATIONAL ■ PAGE K -19 ■ COLORADO WATER LAW