Recreation Water Rights - "The Inside Story"

Home Browse Search

Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. Rejecting the CWCB position, the Division 4 Water Court granted the Upper Gunnison the conditional water rights requested. In its conclusions, the Court acknowledged the presumption entitled to the adverse CWCB findings, but found that the Upper Gunnison had brought forth sufficient contrary evidence to overcome the presumptions. It noted the CWCB had not addressed the flow rates claimed by the applicant, and in that regard had not presented the findings of fact called for under SB 216. The Court went on to state that it would not "second guess" the Upper Gunnison's requested amounts of water. 57 The Court granted the decree for conditional water rights for the course in substantially the amounts claimed. The CWCB appealed to the Colorado Supreme Court. Among other matters, the State argued that under SB 216 the water court must uphold all presumptively valid CWCB findings unless rebutted by clear and convincing evidence. The State also asserted SB 216 directed the CWCB, not an applicant, to determine whether the amount claimed is the minimum stream flow necessary to serve an applicant's intended reasonable recreation experience. In addition to the six parties participating in the appeal, the case drew numerous amicus parties, twenty -four in total, again roughly evenly split between proponents and opponents of recreational water rights. The Colorado Supreme Court held that both the CWCB and the water court failed in certain respects to follow the requirements of SB 216. The Court rejected the CWCB assertion of "objective" authority to determine the appropriate minimum stream flow. The Court directed the CWCB must review the application in the form submitted by the applicant: "As such, we hold that the General Assembly intended for the CWCB to function as a narrowly constrained fact - finding and advisory body when it reviews RICD applications, rather than in an unrestricted adjudicatory role. " Because of the manner in which the CWCB conducted its review, the water court "received no guidance from the CWCB about how Applicant's plans might affect the five statutory factors under consideration. " Finding confusion in the record respecting the actual findings and recommendations of the CWCB, the Court concluded: "No matter which way one views the record, the CWCB's limitation of Applicant's claimed RICD to 250 cfs was in clear violation of the plain language of SB 216, which requires the Board to review the application strictly as submitted by the applicant, make the requisite statutory findings of fact, and formulate a recommendation to the water court. " The Court upheld the Water Court's handling of the presumptive effect of CWCB findings under SB 216. The Court specifically rejected the State's assertion that its findings could only be rebutted by clear and convincing evidence. In the words of the Court: "By urging a higher standard such as clear and convincing evidence or arbitrary and capricious review, the CWCB is fashioning for itself the role of an 56 Findings of Fact, Conclusions of Law and Order, Concerning the Application for Water Rights of the Upper Gunnison River Water Conservancy District, Case No. 02CW38. 59 Id. at 19. 58 Gunnison, 109 P.3d at 588. 59 Id. at 593. 60 Id. 61 Id. at 594. 62 Id. at 596. 61 Id. at 597. CLE INTERNATIONAL ■ PAGE K -22 ■ COLORADO WATER LAW