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

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-5- for some movement of the apportionments between basins. The 1995 report was done on an average annual basis and therefore never dealt with the finer points of water right or compact administration and the potential for impairment of water uses. If fact, the methodology utilized differed in application from how the water right priority system would be applied to the west slope as a whole. Importantly, the applications were eventually withdrawn, in large part because the actual water right administration and compact issues could not be worked out in a manner that did not impair water uses and at the same time provide adequate protection of instream flows for endangered fish. Impairment to Colorado's ability to fully use its compact entitlements is the relevant inquiry here, which was not addressed by the 1995 report. The 1995 report does not support the Applicant's argument that the proposed RICD does not cause compact impairment. Rule 7.a.iv. states that the Board may consider whether beneficial consumptive water use opportunities upstream from the claimed RICD would further develop Colorado's compact entitlements and would be impaired by applicant's sought for stream flow amounts. There are private lands and new beneficial use opportunities, in the form of additional housing and business developments upstream, that could put more of Colorado's compact apportionment to beneficial consumptive uses but for the RICD water right in the amount sought by the Applicant. Rule 7.a.x states that the Board may consider "what provisions in the application are proposed for reducing or canceling the RICD?" There are no provisions that have been proposed for reducing or canceling the RICD. There are no futile call provisions if a call by the RICD would provide insufficient flow for a reasonable recreational experience. Again, the applicants own hydrology would justify the need for a least a dry year reduction provision. Pursuant to these considerations, the Staff recommends that the Board find, as a matter of fact, that the claimed flow rates in the application would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements. 2. Whether the RICD appropriation is for an appropriate reach of stream for the intended use. Pursuant to Rule 7.b.i, the Board may consider the nature of the identified reasonable recreational experience for which the RICD is sought. The resolution by the City Council provided that it was their intention that to create features for "kayaking, rafting, tubing, and other boating activities." The application also included "floating" and canoeing, two new and different uses. Certainly these uses that have never been identified by the City Council should not be included as appropriate uses. In addition, the stated uses of "rafting, tubing, and other boating activities" are not appropriate for this reach. The requested RICD is for one reach of stream approximately 1183 feet. RICD Rule 7.b.ii requires the Board to consider the length of the RICD segment. In the Staff's opinion, the appropriation for this length of a segment is not appropriate for rafting, tubing or other boating activities. These uses typically occur over a longer stretch of river. Moreover, as demonstrated by the Applicant's exhibits, these uses, particularly the rafting uses, have been occurring for years without regard to the proposed RICD structures. These uses are not dependant on the structures. Rule 7.b.iii suggests that the Board consider whether the RICD can be adequately measured and administered through the proposed reach. The Staff is of the opinion that a proposed decree include the typical language requested by the Division Engineer, that the Applicant will install such gages and measuring devices as the Division Engineer deems necessary. Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning