Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Ems. Second, be careful if you seek legislative fixes -- you may get more than you bargained for. The CWCB learned this lesson the hard way when it sought to legislate RICD's out of existence, only to legislatively confirm their very existence and cause the political defeat of one of the CWCB's most vigorous defenders. Third, the stipulated settlements with actual water users entered in almost all RICD cases demonstrate that traditional water court proceedings work and, ultimately even traditional water users are often able to set aside philosophical differences to derive a mutually acceptable settlement in a water court case. Fourth, the CWCB and State Engineer efforts to derail RICDs demonstrate why there should be no absolute State control of water or State water policy. The prior appropriation doctrine works and is the guiding principle that should not be fundamentally altered. Fifth, future claims for RICD water rights should largely ignore the CWCB's rules regarding RICDs. These rules are beyond the scope of the authority delegated to the agency by the legislature and will have little impact on the final water court determination that will dictate the scope of any RICD right. Sixth, Colorado water law is adaptable to changing times. That is its beauty and its essence. Colorado might be said to use a market -based test for allocating water. That is, a use of water is warranted if there is demand sufficient to support payment of the costs necessary to make the use (and if unappropriated water is available). By that measure, there is no question many Colorado local governments believe boating parks are an important and valuable use of water, and there now have been numerous studies documenting the economic benefits to local communities from their boating parks. The traditional concern that failure to consume water constitutes waste no longer applies. Legitimate, non - consumptive instream uses of water are increasingly important as the availability of such flows declines and the demands for their use increase. In most respects RICDs represent a particularly smart use of water. They meet a growing human demand and produce economic benefits without consuming any water. Every drop of water passing through a boating park is available for use downstream. RICDs are a non - polluting use of water. RICDs make possible an additional use of water with no effects on existing uses —the very definition of maximum utilization of Colorado's water. 121 Most importantly, RICDs protect meaningful quantities of water for Colorado's recreation based economy. Once again, "the greater the flow, the greater the dough for the State as a whole. " 122 121 The court-made doctrine of maximum utilization emerged in the context of enabling development of out -of- priority groundwater. Fellhauer v. People, 447 P.2d 986 (Colo. 1969). It was enunciated to provide a policy basis for allowing additional uses of water that would otherwise have been barred by a strict application of the priority doctrine to protect existing water rights. It is somewhat ironic that it was used by the CWCB in this context in an attempt to prevent a legitimate non - consumptive use of water that has no effect whatsoever on existing water rights. 122 Glenn Porzak statement at oral argument before the Colorado Supreme Court in the Vail and Breckenridge cases. CLE INTERNATIONAL 0 PAGE K -34 ■ COLORADO WATER LAW