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

Home Browse Search

-7- The Gunnison decision placed great importance on this factor. The Supreme Court stated that the duty to examine RICD applications with regard to this factor is "consistent with the Board's enabling statute, under which the CWCB has the duty `to promote the conservation of the waters of the state of Colorado in order to secure the greatest utilization of such waters.' To this end, the CWCB is to promote the implementation of `sound measures to enhance water use efficiency in order to serve all the water needs of the state. "' Rule 7.e.iv indicates that the Board may consider whether a reasonable and efficient means is to be utilized to use, divert, capture and control the water for a RICD. The Applicant has failed to provide specifics on how this has been satisfied for each of the recreational uses sought. The Staff suggests that the RICD structures could be more efficiently designed such that conservation of water for future uses upstream of the RICD could occur. The Applicant's identifying of over 27 different potential recreational activities, and pairing them with a multitude of flows does not satisfy this statutory requirement. The invented names of the recreational uses sought, and the shear volume of the number of types of uses sought, suggest that the flows are not efficiently tied to the recreational uses sought. For example, the Applicant states that 1200 cfs at certain structures will provide for the following uses: "tourist attraction, whitewater destination, local and national level racing and freestyle, attractive commercial rafting, instructional, spectators." Then, at 1250 cfs the identified uses are "tourist attraction, whitewater tourist destination, local and national level racing and freestyle, top -level commercial rafting, instructional, spectators." Incredulously this additional 50 cfs turns certain structures use from "whitewater destination" to a "whitewater tourist destination" and from "attractive commercial rafting" to "top level commercial rafting ". This is unbelievable in part, because the Applicant's use of the wier equation to determine the appropriate flows demonstrated that 1430 cfs was necessary for the minimum amount for a reasonable recreation experience, but the Applicant only requested 1400 cfs in the application. (See Lacy Report at page 29). It is curious how 30 cfs is insignificant in one case, but yet 50 cfs in a different situation produces a distinction between "attractive" and "top- level" commercial rafting. Under Rule 7.e.v the Board may consider whether a reasonable demand exists for the recreational activity in question as determined by the levels of current use and /or estimates of future use. There is no question that kayaking has occurred in the past, and will continue to occur in the future. Activities such as canoeing, rafting, tubing and floating have occurred in the past and are likely to continue in the future, but the Applicant has failed to demonstrate how these uses are dependant on the proposed RICD structures. Under Rule 7.e.vi, the Board should consider the times of day, and season of use, depth and flow rate, and with what frequency and duration the requested flow rates exist. These issues are highlighted in: 1) several exhibits attached to the Staff's pre - hearing statement; and, 2) the Staff Recommendations, described below. The Staff commends the Applicant for seeking an RICD water right only for the daytime, with the exception of a few days for night time events. However, the Applicant is seeking a water right for all 365 days of the year. The Staff suggests that this information supports a negative finding for maximum utilization. While the Applicant has indicated that the Durango Course is one of four Centers of Excellence that may be withdrawn if there are not adequate wintertime flows. The Staff's correspondence with the USA Canoe & Kayak Olympic High Performance Director indicates that the "Center for Excellence" designation is no longer used by the USA Olympic Committee, but that the four "COEs" continue to use that designation for their Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning