BOARD00485

• Board Meeting Date: 5/21/2001
• Description: Legislative Wrap-Up
• Board Meetings - Doc Type: Memo

Current Legal Framework: In the City of
Thornton v. City of Fort Collins, the Colorado Supreme
Court held that boat chutes and fish ladders are
structures that concentrate the flow of water. Therefore,
they qualify as a 'structure or device' that controls
water in its natural course or location and qualify for a
water right under section 37-92-103(7)."

While currently cities are seeking to secure flows
through boat chutes and boulder clusters, others
may attempt to secure a flow through a reach with
control structures as small as a large rock, or an old
fallen tree.

Concern has been expressed about these types of
water rights because they could: 1) hinder water
development by limiting exchange potential; 2)
prevent Colorado from using water allocated by
interstate compacts; and 3) become de facto private
instream flow water rights.

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Water courts are not equipped to look to the future
to assess the impacts of such water rights and to
address potential impacts of a large recreational
flow application, for instance an application that .
~eeks all the available flow of a stream. They canno
speculate or handle policy issues. They cannot place ,
terms and conditions on water right applications if
no party is specifically injured by an application.

Currently, given the broad language in the Fort
Collins case, the CWCB does not have much room
(0 negotiate agreements that strike a balance
between the desire for recreational water rights and
future water needs. Legislation to clarify the roles
and responsibilities of the CWCB, the water court
jmd water rights applicants is needed.

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Summarv of Recreational Instreartl Flow Diversion Events
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Date Applicant Maximum Requ~sted Appropriation River
1986 City of Fort Collins 55 cfs (before the Supreme Court) Cache La Poudre
1992 remanded 30 cfs/5 cfs (awarded by the water court)
1994 Littleton 100 cfs South Platte River .
1998 Golden 1000 cfs Clear Creek
2000 Breckenridge 524 cfs Blue River
2000 Eagle River W &SD 400 cfs Gore Creek
2000 City of Aspen 350 cfs Roaring Fork River

Legislation (provisioniby provision)

Section 1 (LEGISLATIVE DECLARATION)
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(5) Provides that only local govemmental entities can ol?tain these types of water rights. Water
rights applicants must submit a copy of their application to the CWCB within 30-days for review.

(6) (a) If a party requests a public hearing on the applicatiojl, the Board shall make findings offact
and a recommendation about whether the application should be granted, granted with conditions, or
denied. i
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(6) (b) In making its findings and recommendations the Bo~d shall consider the following factors:

(1) Whether the application would impair Colo~o's ability to develop its compact
entitlements. (Does the application request all, or a substantial portion of the flow? Where, in .
relationship to the state line, is the reach?)

(2) Whether the identified reach is appropriate fpr the intended use. (Is the length of the
reach too long? Is the application just an instream flow?)