Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, E sq. administrative adjudicatory agency or a quasi-judicial body —a role which ... was specifically rejected by the General Assembly. " The Court did note, however, that SB 216 puts in place a "minimum stream flow" standard for RICDs, and determined that the Water Court failed to independently determine that this requirement had been met: In short, we hold that the starting point for the water court's analysis of a RICD application is the definition of a RICD provided by the General Assembly. Unless the application is limited to the minimum stream flow for a reasonable recreation experience in and on the water, it does not satisfy the beneficial use requirement, and the application cannot be granted. The Court then went on to consider the meaning of the phrases "minimum stream flow" and "reasonable recreation experience." It defined minimum stream flow as "the least necessary stream flow to accomplish a given reasonable recreation experience. " The Court noted the reasonableness of a recreation experience varies according to the perspective of the appropriator. 68 In its search for other guidance respecting a reasonable recreation experience, the Court noted that what is reasonable depends on the particular circumstances at hand, particularly the availability of unappropriated water in the proposed reach of stream, as well as the needs of future upstream consumptive users. In the right circumstances, the Court noted, a "world- class" course claiming almost the entire flow of a stream could be "reasonable ". 69 In conclusion, the Court directed water courts to first make an objective determination concerning whether the application is for a reasonable recreation experience and then to determine the minimum amount of stream flow necessary to accomplish that purpose. 70 The water court must then "carefully evaluate" the five statutory factors as they bear on the acceptability of the application before making its final determination. 71 The Gunnison Court ultimately held that RICDs are to be evaluated by water courts on a case - by -case basis. The Court sifted this evaluation down to three fundamental elements that an applicant must prove when seeking flows for a RICD. First, what was the recreation experience intended by the applicant? Second, is that recreation experience reasonable given the available flows and stream characteristics? Third, are the claimed flows the minimum amounts to achieve that recreation experience? Again, the Supreme Court in Gunnison specifically contemplated decrees providing sufficient flows to support a world -class course and a world -class recreation experience. While the Supreme Court decision was a procedural setback for Upper Gunnison as it involved a remand, the decision was a clear substantive victory for recreation water rights. The State, on the other hand, was now 0 -4 at both the trial court and Supreme Court level. After spending hundreds of 64 Id. 61 Id. at 598. 66 Id. 61 Id. at 599. 6s Id 69 Id. at 602. 70 Id. at 602 -03. 71 Id. at 603. CLE INTERNATIONAL 0 PAGE K -23 ■ CO LORADO WATER LAW