Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. In 2003, the Board adopted the "Recreational In- Channel Diversion ( "RICD ") Policy Regarding Technical Criteria. " It referred to the criteria as a set of "minimum guidelines to evaluate whether an RICD should be granted and under what conditions the CWCB should recommend approval of an RICD. " The CWCB suggested applicants should follow the criteria for determining a "reasonable flow rate for a recreational course design that utilizes stream flow in the most efficient manner possible. " The guidance "recommends" a flow rate in the range of 50 to 350 cfs without regard for the size of a river or stream. 50 It suggests a flow rate that exceeds the 40 percentile flow during the intended time period (that is, a flow at the structure that would be equaled or exceeded 60% of the time) would be per se "unreasonable. " In short, the rules were an effort to accomplish administratively what the CWCB was unable to do through the legislative process or in court -- undermine RICDs and at the same time, make the administrative process so cumbersome and expensive that local communities would be deterred from even trying to appropriate such rights. VIII. Sorting out the Process: the Supreme Court Decision in the Gunnison case In 2002, the Upper Gunnison River Water Conservancy District ( "Upper Gunnison ") filed an application for water rights for the Gunnison River Whitewater Course, consisting of six separate structures to concentrate and control the flows of the Upper Gunnison River for beneficial use. The application sought conditional rights to use flows between May 1 and September 30 ranging from 270 cfs to 1500 cfs. Identified beneficial uses were boating (including but not limited to kayaking, rafting, and canoeing) and general recreational uses. The Upper Gunnison claim was the first significant RICD application filed under SB 216 and submitted to the CWCB under it SB 216 agency rules. The CWCB review process focused heavily on the flow rates that, in its view, would constitute the minimum necessary to provide a reasonable recreation experience. In contrast to the flows sought by the applicant, the CWCB staff recommended flows of 250 cfs for May, August, and September and 500 cfs for June and July. 52 It based these recommendations on statements in the Upper Gunnison's expert's report that whitewater kayaking could occur at 250 cfs, as well as balance needs for future development with the applicant's interest in providing a reasonable recreation experience. Staff recommended that any call under the water right in June and July be regarded as "futile" if it would not produce the full 500 cfs. In its written findings and recommendations to the water court, the Board stated its view that the minimum stream flow necessary to provide a reasonable recreation experience was 250 cfs from May through September and zero cfs the rest of the year. 55 47 CWCB Recreational In- Channel Diversion (RICD) Whitewater Boating Technical Criteria and Policy Manual, adopted November 21, 2003, 11 as Id. 49 Id. so Id., 15. 51 Id. 52 Rod Kuharich et al., The Upper Gunnison River Water Conservancy District's Recreational In- Channel Diversion Application, Case No. 4- 02CW38 at 2. 53 Id. sa Id. at 2 -3. 55 Findings and Recommendations of the Colorado Water Conservation Board to the Water Court, Case No. 02CW38 CLE INTERNATIONAL 0 PAG K -21 0 COLORADO WATER LAW