RICD Rules and Regulations Statement of Basis and Purpose

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RECREATIONAL IN- CHANNEL DIVERSIONS Rules and Regulations Statement of Basis and Purpose Statement of Basis and Purpose for CWCB Recreational In- Channel Diversion Rules: 1. These rules are promulgated to carry out the authority and responsibilities of the Colorado Water Conservation Board ("the Board" or "CWCB ") pursuant to sections 37- 92 -102 & 37 -92 -103 & 37 -92 -305, C.I.S. (2001) and 37- 92- 102(6)(b), C.R.S. (2005) concerning Recreational In- Channel Diversions ( "RICDs "). The 2001 rules have been updated to address pertinent findings and conclusions by the Colorado Supreme Court in Colorado Water Conservation Board v. Upper Gunnison, 109 P.3d 585 (Colo. 2005). 2. In 2001, the General Assembly enacted Senate Bill 216 ( "SB 216 ") to establish a procedure for the adjudication of RICDs by local governments. SB 216 gives the CWCB the responsibility to review applications for recreational in- channel diversions and to submit its findings and recommendations thereon to the Water Court prior to the entry of any decree. "The General Assembly set forth five statutory factors for consideration by the CWCB and the Water Courts in determining whether an RICD application should be ,;ranted, granted with conditions, or denied. §§ 37- 92- 102(6)(b) & 37- 92- 305(1.3), C.R.S. (2004). SB 216 requires that the Water Court not only consider the recommendations of the CWCB relative to the grant or denial of the application, but that the court specifically take into account the criteria set forth in section 37- 92- 102(6)(b), including as may be subsequently supplemented by the CWCB through rulemaking pursuant to section 37-92 - 102(6)(b)(VI). §§ 37- 92- 102(6)(b) & 37 -92- 305(13). 3. In addition to establishing the basic framework for the consideration of RICD applications by the Board, these Rules identify other factors adopted by the Board for consideration that aid in the analysis of whether the claimed water right is appropriate under the particular factual circumstances. 4. Under its statutory authority to adopt "other factors," the Board has incorporated the elements of the statutory definition of RICD into the fact- finding process. This new factor must be met in order for the Board to recommend approval of an applicant's RICD, and the Water Court must subsequently apply this factor. 5. These Rules also provide guidance about the type of information that will assist the Board in making its findings and recommendation to the Water Court as it considers the statutory factors set forth in section 37- 92- 102(6)(b)(I) -(VI). Because these statutory factors are broad, they require extensive analysis. To assist the Board in making its findings and recommendation to the Water Court concerning the statutory factors, the rules include "sub- factors' under each major statutory factor. In the Board's opinion, these sub- factors are important to the resolution of the statutory factors. The sub- factors provide notice to all applicants as to what issues should be addressed to meet the major statutory factors. For example, some of the sub- factors establish criteria governing such diversions, such as appropriate times of day, seasons of use, and lengths of reaches so