Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. Conservancy District v. Colorado Water Conservation Board' and the CWCB's rulemaking response. The paper then discusses the State's all out litigation stance that occurred between 2003 and 2005 over the claim by the City of Steamboat Springs, as well as the stipulated decree entered in the claim by Chaffee County on behalf of the City of Salida and the Town of Buena Vista. The paper also considers the legislative response to these various water court claims and decrees, including the attempt to kill recreation rights with Senate Bill 62 in 2005, and the emergence of a compromise bill, Senate Bill 37, in 2006. Finally, it offers some observations and conclusions. II. Creating a Full Recreation Water Right: the City of Golden White Water Course (Water Division 1 Case No. 98CW244). A. Background — The Ft Collins Decision. In 1992, the Colorado Supreme Court recognized for the first time an appropriative water right for in- channel use to support boating. A central issue in the case was whether the City of Fort Collins could claim a water right for a boat chute built into an old diversion dam (the "Power Dam') on the Cache La Poudre River. In its final decision, the Supreme Court interpreted the statutory definition of a diversion and held the boat chute constituted a diversion of water, and the use of the diverted water for recreation by boaters and tubers constituted a beneficial use. The Court thus found the requirements of an appropriation of water under Colorado law had been met, and granted the City a water right decree to protect these uses. The CWCB opposed the Fort Collins application. The Court rejected the CWCB's argument that the claimed right was a statutory instream flow water right delegated to the CWCB's exclusive control. Distinguishing the CWCB's instream flow rights, the Court noted the recreation right claimed by Fort Collins required a man -made diversion structure for the control of water to allow the intended beneficial use. Instream flow rights, on the other hand, do not require control of the water by a man -made structure and instead represent minimum flows for a stream reach, the purpose of which was not recreation but to help preserve the natural environment to a reasonable decrees The Court noted that an instream flow right usually signifies the complete absence of a man -made diversion or control structures and that even in- channel diversion structures were inconsistent with the statutory instream flows. 1 109 P.3d 585 (Colo. 2005) (hereafter Gunnison). 2 City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992) (hereafter Ft. Collins) 3 Under Colorado water law, any person may gain a legally - protected right to the use of water through the act of appropriation. Colo. Const., Art. XVI, § 5. Historically, appropriation was the act of diverting water from its channel that typically manifested individual control of water. Fort Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032 (Colo. 1892). Yet, Colorado courts long have recognized that the method of controlling water to make possible its beneficial use is unimportant, so long as it is reasonably efficient and accomplishes the beneficial purpose without waste. Thomas v. Guiraud, 6 Colo. 531 (1883); Genoa v. Westfall, 349 P.2d 370, 378 (Colo. 1960). The essential test of an appropriation is a demonstration that the water is, or will be, placed to a beneficial use. Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd., 594 P.2d 570, 574 (Colo. 1979). 4 The Colorado General Assembly enacted Senate Bill 97 in 1973. This law authorized the CWCB to appropriate "minimum" stream flows between designated points on a stream to "preserve the natural environment to a reasonable degree." Colo. Rev. Stat. § 37- 92- 102(3). It also removed statutory references to diversion in the definitions of "appropriation" and "beneficial use." In 1987, the General Assembly made it clear only the CWCB is authorized to appropriate instream flows. Senate Bill 212, 1987 Sess., Colorado General Assembly. 5 Colo. Rev. Stat. § 37- 92- 102(3). CLE INTERNATIONAL ■ PAGE K -3 ■ COLORADO WATER LAW