Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. 1800 cfs for up to eight event days in June; (2) 1400 cfs for up to thirty consecutive days picked each year from the Friday before Memorial Day to the end of June ( "30 -Day Period "), except for event days during that time; (3) 700 cfs from July 1 through August 15, and any time between the Friday before Memorial Day and the end of June that is not part of the 30 -Day Period; and (4) 250 cfs from March 15 to the Thursday before Memorial Day, and from August 16 to November 15. Various objectors asserted they reasonably anticipated filing for exchanges upstream of the boating parks in the near future. These exchanges totaled approximately 140,000 acre -feet and are junior to the boating park water rights. As part of the settlement, however, Chaffee County agreed that so long as certain conditions were met, it would reduce its call during the 30 -Day Period (but not event days) from 1400 cfs to as low as 1200 cfs, to the extent its water rights prevented these future exchanges. This 200 cfs reduction (roughly 12,000 acre -feet if over the entire 30 day period) is available to any user in priority. In addition, under certain very limited conditions, where some water users are seeking to replace storage levels reduced by drought conditions, Chaffee County agreed to reduce its call on event days to as low as 1500 cfs, and during the 30 -Day period to as low as 1100 cfs on weekends and 1000 cfs on weekdays. Negotiations in the case were complicated by the Upper Arkansas Voluntary Flow Management Program ( "VFMP "), a year -to -year, voluntary flow management program whereby the Bureau of Reclamation, in concurrence with the SEWCD and CDNR, operates upstream reservoir releases, primarily involving trans- mountain water, so as to manage flows in the Arkansas River above Pueblo Reservoir for recreation and fishery purposes. Although the boating park water rights are distinct from the VFMP, some parties were concerned that opposition to the boating park water rights would jeopardize this voluntary agreement. To help ensure consistency between the VFMP and the water rights, Chaffee County agreed to use the same river gage used in the VFMP to administer both boating park water rights. Chaffee County further tailored portions of its water rights to be consistent with the target flow levels of the VFMP. This included 700 cfs from July 1 — August 15, 250 cfs on the shoulder seasons. These recreational water rights work in tandem with the VFMP by protecting the native flows that the program is designed to supplement. In short, although Chaffee County cannot call for storage releases under the VFMP to satisfy its water rights, it can prevent junior water rights from diminishing river flows below these targets. With the assistance of SEWCD, CDNR, Trout Unlimited, Arkansas River Outfitters Association and others, negotiations in the Chaffee County case resulted in a five -year VFMP agreement that provides more certainty for local outfitters and businesses. As part of the larger settlement agreement, there was also a greater commitment obtained from water users to exercise water rights in a manner consistent with the VFMP and commitments from some parties on limitations with respect to water rights that would otherwise be senior to the RICDs. The CWCB re- convened its hearing in March, 2006, during which it heard evidence on the settlement agreements that, although not signed, had largely been approved in concept. Based on these negotiated agreements, the CWCB had little choice but to recommend approval of the application. Thereafter, the settlements were finalized and a final decree issued without a trial. XII. The General Assembly Weighs in Again: Senate Bill 37 CLE INTERNATIONAL ■ PAGE K -31 ■ COLORADO WATER LAW