Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. D. The Water Court Process. Eight parties, including the CWCB, filed statements of opposition to Golden's claim. The State Engineer intervened in 2000. Golden settled with all actual water users, but was unable to reach agreement with the CWCB and the State and Division Engineers. With no actual water rights that could be injured by the application, these State entities pressed the case to trial to further their firm position that in- channel water rights for recreation purposes could not be decreed to the City under Colorado law. As one State witness explained, the only acceptable term and condition ever offered by the State in settlement was that Golden withdraw the application. In ruling on pretrial evidentiary motions, District Court Judge Jonathan Hays noted the unique factual questions presented by Golden's claim for an in- channel water right for its boating park. His ruling articulated the Water Court's view concerning the applicant's burden: " Golden's burden is to establish that the flow rates it seeks do not exceed the reasonable rates needed to fulfill its stated purpose." 8 With this road map from the Court, Golden was able to prepare to meet its burden at trial. The State offered numerous grounds for opposing Golden's claim. Among other theories, the State argued Golden's claims were in fact instream flow water rights, and that only the CWCB was authorized to appropriate water for instream flow purposes. Despite the clear holding in the Ft. Collins case, the State further argued Golden's whitewater course structures did not constitute a "diversion" of water within the statutory definition at § 37- 92- 103(7). Citing the definition of "beneficial use" at C.R.S. § 37- 92- 103(4), the State argued that Golden could not demonstrate that the amount of water it claimed was "that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made. " While the State's grounds for opposition continually changed and expanded, ultimately the State's main argument became that the Court should develop a "duty of water" for boating parks, limiting the size of any water rights that could be claimed to only that which would allow some minimally reasonable boating experience (i.e. just enough water to float a boat). The State advanced this argument notwithstanding Golden's undisputed intent to develop a "world- class" boating park. 11 At the heart of the State's opposition, and underlying all of its arguments, was the State's assertion that recreation was a lesser or second -class use of water that either should be denied or severely limited to preserve the water for future, traditional consumptive uses. In responding to the State's "duty of water" argument, Golden argued that no matter how the State dressed up the argument, its attempt to cap the size of Golden's recreation right to an amount less than Golden's actual or intended beneficial use was contrary to the right to appropriate the unappropriated waters of the State guaranteed by Article XVI, § 6 of the Colorado Constitution. 6 Testimony of Edward Kowalski with the CWCB. 7 Concerning the Application for Water Rights of the City of Golden, Case No. 98CW448, Water Division 1, Orders Re: Applicant's Motions in Limine, March 7, 2001. 8 Id. 9 CWCB, Statement of Opposition, Feb. 25, 1999. 10 Objectors' Trial Brief, March 7, 2001 at 2 -3. 11 Id. at 3: Objectors' Reply to Applicant's Motions in Limine, February 28, 2001 at 3 -6; Objectors' Reply to Golden's Second Motion in Limine, March 1, 2001 at 4 -5. CLE INTERNATIONAL ■ PAGE K -5 ■ COLORADO WATER LAW