Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. have given the CWCB almost complete authority to decide RICD applications, subject to water court review only under the "arbitrary and capricious" standard. 18 The bill would have applied retroactively to Golden's application even though it was filed in 1998 and the trial on the application was almost complete. In short, it was originally an effort to severely limit or outright kill RICDs. At best, it was an effort to make RICDs a second class water right. As discussed in Section III below, the bill that finally emerged was much modified, and, after a thorough legislative battle, essentially ratified RICDs as a beneficial use of Colorado water. F. The Water Court Decision. Upon completion of the trial, the Water Court decreed the full amount of the water rights claimed by Golden. In doing so, the Court pointed out the boating park was used both day and night, and found Golden was entitled to absolute rights for the flow rates as measured at the Clear Creek Gauge for the time periods when the course had been used by boaters as of the time of trial, and granted conditional rights for the full claimed remaining amounts, including the 1,000 cfs high flow claim. The Court held that the seven structures that had been built at the time of trial controlled water within the statutory meaning of the term "diversion" in C.R.S. § 37- 92- 103(7), and as the diversion requirement had been further explained in the Ft. Collins decision. The Court found the structures were designed for optimal effect at 1,000 cfs, that at this flow the structures create waves and jets of water, self - scouring pools, h�draulic holes, large changes in current direction, and other whitewater features important to boaters. The Court offered a detailed finding explaining that the full claimed amounts had or could be put to beneficial use. Most importantly, the Court found that the boating park received greater use, and Golden received greater economic benefit, as the flows increased, so that the greatest use and greatest economic benefit were at the high flow rate of 1000 cfs: The Court further finds that this beneficial use at the conditional amount claimed is reasonable and there is no waste as the higher the flows, the greater the Course usage, and attendant economic benefit. The testimony was unrebutted that when flows are at the 1000 cfs level, the Course is accessible to intermediate, advanced - intermediate, expert and even world -class boaters. Intermediates use easier parts of the Course, while more experienced boaters utilize more challenging structures in the Course. In addition, the Court finds that the Golden Course is perceived by many boaters as the best in the area. That reputation translates directly into economic value for the City in that it attracts boaters from across the State, the County, and even 18 The arbitrary and capricious standard gives great deference to the agency decision under review. The CWCB argued in the Gunnison case that its findings and recommendations should be reviewed using this higher standard. The Colorado Supreme Court rejected this argument: "By urging a higher standard such as clear and convincing evidence or arbitrary and capricious review, the CWCB is fashioning for itself the role of an administrative adjudicatory agency or a quasi-judicial body -a role which, as discussed above, was specifically rejected by the General Assembly. SB 216 does not grant the CWCB the authority to review RICD applications as an administrative adjudicatory agency or quasi-judicial body, and thus, its findings are not entitled to a corresponding deferential standard. " Gunnison, 109 P.3d at 597. 19 Golden Decree, ¶ 7. CLE INTERNATIONAL ■ PAGE K -8 ■ COLORADO WATER LAW