Re: Durango's RICD Application, Case No. 7-06CW9

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-11- Staff Recommendations The Staff also includes the following comments with regard to possible recommendations of the Board. The Gunnison decision expressly acknowledged that the Board, in addition to making findings of fact with regard to the five required statutory factors, might also make recommendations to the water court. With that in mind, the Staff recommends that this Board make a number of recommendations for the reasons explained below. The Staff recommends that the Board recommend that the RICD claimed be denied because it is not for a beneficial use of water. Under the Gunnison decision, "unless the application is limited to the minimum stream flow for a reasonable recreation experience in and on the water, it does not satisfy the beneficial use requirement, and the application cannot be granted. Here, the Applicant's course designer has merely included conjecture about how each flow supports different recreational experiences, but fails to identify the reasons why each flow is the minimum now for each one of the identified recreational experiences. To determine whether a water right is for a beneficial use requires a two - pronged analysis —first is the recreational opportunities sought reasonable, second are the amounts sought the smallest acceptable or possible quantity in a given case. The only information the Supreme Court provided regarding the first part of this inquiry (reasonableness) is as follows: `By implication, the reasonableness of an appropriator's sought recreation experience is directly related to the available, unappropriated stream flow, thereby depending entirely upon the river basin on which it is sought. Consequently, not all rivers and streams in the state may support world -class whitewater courses despite a particular appropriator's intent, and some may have so little available flow that only floating a kayak would be reasonable." Later the Gunnison decision states: "In an over appropriated stream basin, for example, it likely would not be objectively reasonable to have a world -class or championship level whitewater course, but it might be objectively reasonable to have a more leisure- oriented course." This analysis is unique to RICDs and is only relevant to an analysis of what would constitute a reasonable recreation experience. In this case, the basin is not over - appropriated and thus, world -class kayaking may be a reasonable recreation experience. But the inquiry does not end there. There are other uses sought some that may be reasonable and some that may not be reasonable. However, even if a given recreational experience sought is reasonable, it still must be limited to the minimum stream flow to accomplish the intended purpose. It is the Staff's position that year round whitewater boating is not a reasonable recreation experience. Moreover, the Applicant has not provided any evidence justifying a water right for the entire late fall, winter and early spring months. The Board should recommend that if a water right is granted, that it be limited to an objectively reasonable boating season. With regard to the second prong of the analysis, the Staff recommends that the Board recommend that the water court deny the application for the requested flow amounts because they are not for the minimum amounts necessary for the objectively reasonable recreation experiences. Thus, the Staff recommends that the Board recommend that the water court deny the application as requesting a water right for something other than a beneficial use. Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning