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Recreational In- Channel Diversions (RICDs) G E. Porzak, Esq. <br />Colorado in times when tourism is otherwise low. People come looking for the best possible boating <br />experience. Higher flows enhance the experience and bring more users. As summarized by counsel for <br />Vail and Breckenridge, "the greater the flow, the greater the dough, for the State as a whole." <br />The towns went on to argue that the non - consumptive, in- channel appropriations represented the <br />ultimate in achieving maximum utilization of the State's waters. For the most part, such appropriations <br />simply add another use to water that is already moving to senior uses downstream. It adds a new <br />nonconsumptive use that is already claimed downstream or must be delivered under Colorado's compact <br />delivery obligations. New appropriations always have the effect of limiting what others may do in the <br />future. Such is the nature of the prior appropriation doctrine. But the test of value has always been the <br />willingness of the user to invest the time and money necessary to put water to beneficial use. Here, <br />three public entities had made considerable investments to appropriate and use water in furtherance of <br />their citizens' economic and social well being. <br />VI. The Supreme Court Decision in Golden, Breckenridge and Vail <br />With Justice Hobbs not participating, the Colorado Supreme Court deadlocked 3 -3 on whether to <br />affirm the decisions of the two water courts in the three different cases. 41 The effect of an equally <br />divided court is to affirm the lower court decisions by operation of law, pursuant to Colorado Appellate <br />Rule 35(e). Thus, the decision of the Water Court for Water Division No. 1 became final, as did the <br />decisions in Water Division No. 5. The Golden, Vail, and Breckenridge boating parks were protected <br />with decreed water rights, and the Denver and local newspapers heralded this as a victory for recreation <br />water with front page banner headlines. The next round of legal battles would be fought under the terms <br />established in SB 216. <br />VII. The CWCB's RICD Rules Under SB 216 <br />Allegedly in conformity with the mandate of SB 216, the CWCB adopted Recreational In- <br />Channel Diversion Rules on November 8, 200 1. 42 The rules rejuire the applicant to submit a copy of its <br />water court application to the Board within 30 days after filing. 3 The rules listed a total of twenty -five <br />findings the Board may make in its consideration of the five statutory factors. 44 By way of introduction <br />to this list of findings, the rules stated: "If the Board determines that the amount of water sought for a <br />RICD does not represent the stream flow necessary to provide a reasonable recreation experience in and <br />on the water and/or that the RICD does not divert, capture, and control water in its natural course or <br />location with physical control structures, then the Board shall note that determination in its written <br />recommendation to the water court and specifically preserve the Board's authority to argue these issues <br />in water court. " In addition, the rules identified twelve types of information the applicant should <br />provide to assist the Board in its evaluation. 46 <br />41 State Engineer v. City of Golden, 69 P.3d 1027 (Colo. 2003). <br />42 Recreational In- Channel Diversion Rules as Adopted by the Colorado Water Conservation Board on November 8, 2001. <br />43 Id., ¶ 6. <br />4 Id., ¶ 7. <br />4 <br />Id. <br />46 id., ¶ 8. <br />CLE INTERNATIONAL ■ PAGE K -20 ■ COLORADO WATER LAW <br />