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Recreational In- Channel Diversions (RICDs) Glenn E. Porzdk, Esq. <br />Defeat of SB 62 and questions raised in the Gunnison decision prompted the 2005 General <br />Assembly to ask the Water Resources Review Committee, a standing committee of senators and <br />representatives that consider water matters for possible legislative action, to hold hearings to determine <br />the need for legislation addressing RICDs. The Committee held several hearings in the summer and <br />early fall at which numerous parties testified. An initial draft was generated that prompted active review <br />and comment. The outcome of this process was introduced in the 2006 General Assembly as SB 37. <br />The bill's sponsors were the co- chairs of the Committee (and also the chairs of the Senate and House <br />Agriculture committees), Senator Isgar and Representative Curry. <br />One major change proposed by SB 37 was to reduce the CWCB's review role. To this end, the <br />bill proposed removing the requirement that the CWCB hold a hearing, and replaced the hearing with a <br />public meeting.' 10 It also proposed eliminating from CWCB review the "appropriate stream reach and <br />access factors" first established in SB 216, as well as the catchall "such other factors as may be deemed <br />appropriate. ""' While the CWCB was still required to provide written findings to the water court on the <br />remaining three factors, it no longer would make recommendations.' 12 The water court was specifically <br />directed to deny an application if it found the RICD would "materially impair the ability of Colorado to <br />fully develop and place to consumptive beneficial use its compact entitlements ...... 113 <br />To help address the concerns raised by the Colorado Supreme Court in the Gunnison decision <br />respecting guidance to the water court in evaluating the reasonableness of the proposed RICD <br />appropriation, the bill offered the following as factors for the water court to consider: (1) the flow <br />needed to accomplish the claimed recreational use, (2) benefits to the community, (3) the intent of the <br />appropriator, (4) stream size and characteristics, and (5) total stream flow available at the control <br />structures at the time claimed.' 14 <br />Two especially controversial provisions in the original bill precluded the State Engineer from <br />administering a call for a RICD unless at least 90% of the decreed rate of flow was present, and required <br />the water court to retain jurisdiction of a decreed RICD for at least twenty years.' is <br />The original bill was significantly modified in both the Senate and the House. On the Senate <br />side, the primary bill sponsor, Senator Isgor, attempted a number of amendments to limit the RICD <br />right, and successfully reintroduced the word "minimum" into the definition of RICD. 116 On the other <br />hand, the call threshold was lowered to 85 %, and it was clarified that this was the amount that had to be <br />generated by a call for it not to be deemed futile.' 17 <br />Perhaps the most significant change made in the House that was ultimately enacted into law was <br />the incorporation of an alternative provision quantifying the claimed RICD appropriation volumetrically <br />and comparing that volumetric amount to the total average historical volume of water that would have <br />109 Senate Bill 06 -037, A Bill for an Act Concerning the Adjudication of Recreational In- Channel Diversions. <br />110 Id., Section 1, 37- 92- 102(6)(b). <br />"' Id., (6)(b)(II), (III) & (VI). <br />112 Id. , (6)(a)• <br />113 Id., Section 3, 37- 92- 305(13)(c). <br />Id., 37- 92- 305(13)(b). <br />15 Id., 37- 92- 305(13)(d) & (e). <br />16 Engrossed, Section 2, 37- 92- 103(10.3). <br />"' Id., Section 3, 37- 92- 305(13)(c). <br />CLE INTERNATIONAL 0 PAGE K -32 N COLORADO WATER LAW <br />