Recreation Water Rights - "The Inside Story"

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,.', Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, passed through the structures during the proposed days of use. 11 8 If the volumetric quantity of the RICD does not exceed 50% of the total average historical volume during the claimed period of use, then the amendment provided the 85% call threshold limitation would not apply. 119 Moreover, the retained jurisdiction provision was stricken in the House and clarifying language was added to the applicability provision to ensure SB 37 would not apply to RICDs with decreed conditional rights. Thus, the bill would not apply when such rights are brought back to water court for either a finding of reasonable diligence or to make a conditional right absolute. 120 As the Bill was finally enacted, everyone seemed to feel it was an acceptable compromise. Most hoped its enactment would put an end to legislative attempts to kill RICDs. In the final analysis, SB 37 was an important victory for proponents of recreation water rights. Despite constitutionally doubtful limitations imposed on this kind of appropriation, the ability to appropriate water for RICDs was again confirmed by the Legislature. Most importantly, in the space of a few short years, proponents of water rights for recreation had pushed the law from the State's claim that such water rights could not exist at all, to legislative recognition that 50% or more of the historic flow in a river was likely a reasonable flow amount. In addition, there was the Supreme Court case law recognizing that, in the right circumstances, a "world- class" course claiming almost all of the flow in a stream might be reasonable. XIII. Observations and Conclusions In the end, recreational in- channel water rights won out because they are a true beneficial use of water -- Colorado's emerging heritage and legacy. Recreation will only become more important to Colorado's economy in the future. RICDs provide a particular type of water -based recreation experience that not only serves growing demand for this kind of activity, but promotes related economic development. People are drawn to water, for recreation as well as for simple aesthetic enjoyment. Colorado water law is moving irretrievably into this changing world, as it must. Taking the long view, it can be said much progress has been made. From its modest origins acknowledging that a boat chute through a dam could serve as a diversion of water for a beneficial recreation use, to its current version under which 50% or more of the volume of water in a stream may be appropriated during a specified period for boating use by a recreational in- channel diversion, the law has broadened. In 10 years, the bar moved from minimum amount to float a boat (35 cfs in Fort Collins) to appropriations as great as 1800 cfs and 50% or more of historic average flows (as codified by SB 37). Unnecessary constraints, both administrative and legislative, still remain, however, and should be removed. Given the increasing importance of such uses of water, we believe these limitations will disappear, and RICDs will be treated like any other beneficial use of Colorado water. Looking back on this ten -year struggle for recognition of recreational in- channel water rights, a number of important lessons can be drawn. First, significant change does not come easily in the water rights arena. Anyone seeking to step outside traditional notions of consumptive beneficial uses should expect a tough fight. 118 Revised, 37- 92- 305(13)(0. 119Id., 13(0(1) 120 Id., Section 4. CLE INTERNATIONAL 0 PAGE K -33 E COLORADO WATER LAW