Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. international competitors. The Court finds that the reputation of the Course is in large part due to the high flows. The Court concludes that high flow rates are a critical component of the Course as an attraction and amenity for Golden. For all of the foregoing reasons, the Court concludes that flows of up to 1,000 cfs can and will be put to beneficial use and not wasted. The Court expressly found Golden's appropriations to be reasonable for the purposes for which they were claimed, and rejected the CWCB's attempt to set aside water for future consumptive uses. Citing the statutory definition of "beneficial use" at C.R.S. § 37- 92- 103(4), the Court explained: The question, therefore, is not whether the amount of water claimed is "reasonable" in the abstract, or as compared to other potential future uses of the water, but whether the amount claimed is reasonable for the purposes for which Golden made the appropriation. When tested against Golden's purposes ... the Court concludes that the 1,000 cfs claimed by Golden in May, June and July, and the lesser amounts claimed in the other months of the year, are reasonable. On this point, the Court specifically noted that " Golden's constitutional right to appropriate a new water right in accordance with Colorado law may not be denied or limited based upon the public trust doctrine, or similar policy restraints purportedly rooted in concern for the quantities that should be left for future water users. " In further assessing the reasonableness of Golden's claim, the Court referenced Golden's stipulations with all actual water users on Clear Creek . The Court explained that Golden was adding a new use onto water that was already mostly subject to downstream senior calls, so that in a dry year, 100% of the claimed water was already subject to a call; in an average year, roughly 84% of the water that would pass through the structures was already subject to a downstream senior call. In perhaps the most stunning rebuke of the State's case, the Court offered a detailed finding discounting the testimony of the State's $385/hr. boating expert: The Court further finds that the testimony of the State's expert witness, Dr. Bo Shelby, does not assist the Court in rendering the decision on "beneficial use" and "reasonableness" that must be made in the context of the Colorado appropriation doctrine. Water rights in Colorado are quantified according to the amount of water that is reasonable to serve the appropriator's intended beneficial use. Dr. Shelby did 20 Quoting the Colorado Supreme Court's decision in Bd. of County Commissioners of the County of Arapahoe v. United States, 891 P.2d 952, 972 (Colo. 1995), the Court explained "a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy." 21 Several of the stipulations were designed to work in tandem with the boating park so that the timing of upstream diversions would impact flow levels in the boating park only at night, and thus not affect day -time boating. Stipulation between City of Golden and Clear Creek Skiing Corporation, December 12, 2000. Stipulation between Applicant City of Golden and Town of Georgetown, Feb. 26, 2001. 22 Golden Decree, 19. CLE INTERNATIONAL ■ PAGE K -9 ■ COLORADO WATER LAW