Recreation Water Rights - "The Inside Story"

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Recre In- C hannel Diversions (RICDs) Glenn E. Porzak, Esq. The decree specifically addressed each of the five statutory criteria set forth in SB 216, finding in all cases that the evidence supported the City's application, and that substantial unappropriated water remained for future upstream development, including exchanges. 84 In summary, despite its vigorous opposition that included numerous motions, objections, depositions, the ordeal of a two day administrative hearing and a two week trial, Judge O'Hara ruled from the bench the State failed to reduce the City's claim by a single drop of water. It was such a devastating loss that it paved the way for the ascendance of more reasonable voices within the CWCB and a narrow majority vote not to appeal. X. The CWCB Response to the Gunnison Decision: New RICD Rulemaking In response to the Upper Gunnison decision, the CWCB initiated a rulemaking process in the summer of 2005 to revise its existing RICD rules. Remarkably, the new rules imposed a far greater burden on the applicant than the previous rules. The statute only requires the applicant to provide a copy of its water court application to the CWCB. 85 Yet, the new CWCB agency rules broke the five statutory review factors into forty -five "sub- factors" for Board consideration, and required applicants to provide all information necessary for an extensive CWCB evaluation on most of these forty -five sub- factors. 86 For example, the effect of an application on Colorado's ability to develop its compact entitlements was given ten sub-elements. 87 These elements went well beyond a finding of direct impairment (i.e., because of this appropriation, Colorado will be unable to develop its compact entitlement) to a review of any and all potential uses of water in a given basin, and whether such uses might be impaired by the application. Thus, under the rules the CWCB is to consider "exchange opportunities ... that may be adversely impacted ... ", the effect on "reasonably foreseeable uses," whether the application "shields water from consumptive use" otherwise available, and whether consumptive use "opportunities" upstream would be impaired. All appropriations of water necessarily have such effects under a priority system. The very purpose of a prior appropriation water right is to preserve a claim to a particular portion of water as against the effects of subsequent appropriations. These "considerations" clearly go well beyond the statutory charge given to the CWCB and reflected the CWCB's intention to evaluate potential other future uses of the water claimed by the RICD, rather than determine compact impairment. The CWCB rules similarly expanded the other statutory review criteria into multiple requirements. The "maximum utilization" factor, for instance, was divided into twenty subparts, and the rules required applicants to submit information on each one. 83 Id., ¶ 6(k) at 6 -7. 84 Id., ¶ 6(k)(v) at 7. 85 Colo. Rev. Stat. § 37 -92- 102(5). 86 Rules Concerning Recreational In- Channel Diversions, adopted pursuant to section 37 -92 -102, C.R.S., ¶ 7. 87 Id., ¶ 7(a). "¶ 7(a)(v), (vii), (viii), (ix). CLE INTERNATIONAL ■ PAGE K -27 ■ COLORADO WATER LAW