Recreation Water Rights - "The Inside Story"

• Description: RICD
• State: CO
• Date: 1/1/3000
• Author: Glenn E. Porzak, Steven J. Bushong, P. Fritz Hollerman, Lawrence J. MacDonnell
• Title: Recreation Water Rights - "The Inside Story"
• Water Supply Pro - Doc Type: Publication

Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq.
In the Gunnison case, the Supreme Court explicitly admonished the CWCB for substituting its ;
judgment about the flow rate proposed by the applicant. 89 Nevertheless, the new rules once again called
for the Board to consider the appropriateness of the claimed flow rate, both in the context of maximum
utilization and whether the amount claimed is the "minimum. " As further described in the "Statement.
of Basis and Purpose" accompanying the rules, the Board's purpose was to enable it to address "the
ultimate policy question" of how much water is needed, "to determine where in the middle of the
spectrum the RICD should be to constitute the minimum stream flow for a reasonable recreation
experience.s Yet, the Colorado Supreme Court had just rejected the CWCB's assertion that SB 216
had given the Board "the authority to objectively determine what stream flow is minimally necessary in
order to provide a reasonable recreation experience. " Again, the Court held: "After a careful analysis
of the plain language of SB 216 as a whole, as well as noting the legislative history, we hold that the
General Assembly intended for the CWCB to analyze the application purely as submitted by the
applicant, rather than to objectively determine what recreation ex would be reasonable, and
what minimum stream flow would meet that recreational need. "
Colorado often is referred to as a "pure" prior appropriation state. 94 That reference reflects the
State's long - standing policy of allowing the would -be user of water to establish its claim to public water,
subject only to court ratification that the appropriation meets certain statutory requirements, rather than
the administrative allocation system using permits followed by most prior appropriation states. 95
Without doubt, the General Assembly modified this traditional policy in the case of RICDs by providing
for a partial, fact - finding review by the CWCB prior to water court determination. But that
modification, as the Colorado Supreme Court found in the Gunnison case, was a limited one — making
the CWCB a "narrowly constrained fact - finding and advisory body .... " The nature of the review
called for by the CWCB rules went far beyond the CWCB's statutorily- directed role.
Adoption of these rules represented an astonishing action by a board that had just been
reprimanded by the Colorado Supreme Court for exercising authority not provided in SB 216.
Apparently, the CWCB failed to read the Gunnison decision or blatantly chose to ignore it. But to those
involved in this controversy, this action was entirely consistent with the CWCB's behavior in its
publicly - funded campaign against recreation water rights.
89 Gunnison at 595 (SB 216 does not give the CWCB to dictate a flow rate or recreation experience for RICD water rights).
90 ¶ 7(e)(vii) & 7(f).
91 Colorado Water Conservation Board, Recreational In- Channel Diversions, Rules and Regulations, Statement of Basis and
Purpose, 15.
92 Gunnison, 109 P.3d at 593.
93 Id.
94 See, e.g., Thompson v. Ground Water Comm'n, 575 P.2d 372, 381 (Colo. 1978)
95 Getches, Water Law in a Nutshell (1984) at 142 -43 ( "Every state but Colorado has vested authority in an administrative
agency. ")
96 Gunnison, 109 P.3d at 593.
97 As a state agency, the CWCB has used state funding to oppose applications by local governments. Not only has the
CWCB committed considerable staff time to opposing RICDs, it has hired consultants and paid the costs of using attorneys
and paralegals from the Office of Attorney General. As an example, we used Open Records requests to obtain the
identifiable direct costs of the CWCB's opposition to the Steamboat Springs' application in Case No. 03CW86 between
January 2004 and November 2005. Payments to consultants totaled $69,108. Attorneys from the Colorado Department of
Law (Office of the Attorney General) billed 1,736 hours; legal assistants billed 791 hours. Assuming an average hourly rate
of $100 (well below rates charged in the private sector), the CWCB spent $252,700 of taxpayer money on lawyers. No
information was available on the hours committed by CWCB staff or the members of the Board, or on the expenses
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