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............................ ............................ .......................... .......................... ......................... !.e_... oret,(o '. . ..:':~<:> ..................~...l~j"." '{ ................. '..n.ct;iii(.. .'P.ot....tlon 'P'''IlI~ ...... ......... ...... ........ ........ . .... ......... ... ........ ...... ...... ...... ..... ...... .... ...... .......... ........ ......... ........ .......... ...... .......... ........ ........... ....... ........... ....... ............ ...... ............ ...... .......... ..... ............ ..... ............. .... ............ .... ............. .... ............ ..... ............. .... ............ .... ............. .... Vol, 4, Isslol" 1 J""nlol"'lI 2001 Colorado faces nevv challenges- recreational instrearn flovvs By:Ted Kowalski CWCB Staff Colorado water law has expressly recog- nized recreational use of water as a ben- eficial use for some time. But recently, in-channel diversions for recreational use have raised unique challenges for Colorado. Under Colorado water law, the Colorado Water Conservation Board ("CWCB") may appropriate instream floVofS between specific points on natural streams to preserve the natural envlronmenr to a reasonatJle aegree [without the need for diversion or control structures]. Colorado water law does not explicitly authorize the CWCB to appropriate instream floVofS for recreational purposes. Nev- ertheless, in-channel recreational uses are per- mitted. Currently municipalities are taking advantage of a 1987 Supreme Court ruling, City of Thornton v. City of Fort Collins, which permits an entity to protect a flow amount through a stream channel for recreational pur- poses, as long as the requisite control exists. In a recent water court application, the City of Golden has applied for a recreational water right that tests the limits of the 1987 ruling. The Golden case may eventually provide fur- ther guidance about the future of recreational instream flow appropriations. In the Fort Collins case, the City of Fort Collins applied for a water right for a boat chute and a fish ladder on the Cache La Poudre River (for more information about this case, please refer to ISF history featured in the April 2000 issue of InStrea.m Colora.do). The Supreme Court held that "boat chutes and fish ladders, when properly designed and constructed, are struc- tures which concentrate the flow of water to serve their intended purposes." Through a stipulation with the CWCB, the City of Fort Collins limited the stretch of protected river to 400 feet. After the Fort Collins ruling, the City of Little- ton applied for a similar water right within a certain reach of the South Platte River in 1994. Littleton identified a number of boat chutes, rock deflectors, and boulder clusters that concentrate the flow of water to permit safe boat passage and fish passage along this stretch of the South Platte River. Littleton sought an appropriation of 100 cfs year round for boating purposes, and an appropriation of 70 cfs during summer and 30 cfs during win- ter for fishery purposes. The tvvo water rights are not cumulative and not stacked. In other words, the maximum appropriation is 100 cfs. AS in rhe 1'on Loiiins case, rhe LVV-Ltl fiied an objection arguing that it had the exclusive authority to hold instream flow water rights. After years of discussions, the CWCB, Denver Water, and Littleton negotiated certain terms and conditions which assure that Littleton's application does not expand the Supreme Court decision in the Fort Collins case. Because the rock deflectors and boulder clus- ters would have expanded the Fort Collins ruling, Littleton agreed to reduce its appro- priation to cover only three boat chutes. Lit- tleton provided specific water availability information, and agreed to permit existing and future exchanges by Denver. Then, in 1998, the City of Golden applied for a water right for up to 1000 cfs on dear Creek for boating, piscatorial, and general recre- ational uses. This application describes a rock deflector and seven dams that "control, con- centrate and direct the stream flow." Golden claims the design flow rate for the Golden course is 1000 cIS, but the appropriation is stepped to match the historically measured floVofS on Clear Creek. The Golden trial is currently set for March 12-14, 2001. The CWCB's primary concerns are that Golden's decree would expand the holding of the Fort Collins case, and that Golden has not beneficially used the water it is claiming. Since Golden's filing, many water users and interested observers have expressed concern that these types of applications could: 1) hin- der flexibility by limiting exchanges of water among water users; 2) limit Colorado's ability to use water allocated under inter-state com- pans; and J) Clrcumvenr rhe Jrare's msrream flow program by essentially authorizing pri- vate instream flow water rights. The possible effects on water use vvithin the Clear Creek basin have been described by some as "poten- tially devastating." In light of the Fort Collins ruling, even though the CWCB is still the sole authority to appro- priate instream flow rights to preserve the water-dependent natural environment, other entities or individuals have some limited abil- ity to appropriate certain in-stream rights. The challenge is, therefore, to provide "bal- ancing requirements" for future appropriators of so-called recreational instream flow water rights, to assure that water is appropriated in reasonable amounts and used efficiently and to allow for some reasonable future water use. Only time will tell what the outcome oflitiga- tion deciding this issue will be..