BOARD01398

• Board Meeting Date: 7/24/2000
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

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Edw~rd Kowalski
Daniel McAuliffe
Jnly 20, 2000
Pace 3

For these reasons, it is misleading and confusing to call Golden's application an
"illslream right." Golden's kayak course right, ~nd others like it, should be referred to as the
"diversions" and "appropl1iltiollS" that they clearly are under Colorado law,

The July 13 drat[ memo identifies three "problems" caused by applications like Golden's.
The allcgation is 1hat these type of applications could:

I, I-Tinder water development by limiLing exchange potential;

2. Prevcnt Colorado from heing able to use all of the water resources allocated under
tJxisting compact entitlements; and,

3. Dctract from the State's instream flow program by tJssentially anthorizing
instream now rights.

Memo at 3,

With respect to the "probJem"oflimiting exchange potential, the staff raises the concern
thilt "there are not built-in protections to allow exchanges to occur." Memo at 3. The short
answer to this "problem" is that any new water right for any purpose on any stream reach has the
ability to limit exchange potential. A "built-in" limitation on any new right is its junior priority
and the fact that the augmentation and exchange statutes prevent a water right holder Crom
blocking an exchange that will not cause injury. See C.R.S. Ss 37-80-120; 37-92-305(5). Tn any
event, it is puzzlillg thaI this "problem" is not a concern when it comes to a CWeB initiated
il1~trc~m now; yet, it is of grave concern when a n1Unicipality initiates a water right that has a
bencficial impael on an entire city and region.

The memo asserts tbat Golden could prevent an exchange through its kayak course even
if the exchange operated only at night. Whether it eOllld or not is an open question, but Gorden
has already settled with other water users on Clear Creek on exactly that basis. In fact, Golden-
has settled or is in tbe process oCsettling with most of the parties in its case. The CWCD and
Clear Creek County (which owns no water rights) are the only exceptions. We are left to wonder
who the cweD staff is trying to protect, Certainly it is not any instream flow as there is no
inSlrl'am !l01V decreed or planned within the course reach. The CWCB is simply without any
authority [0 assert injtlry to any other water rights,

With respect to the seconu problem, the threat to Colorado's compact entitlement is
presellt IlOl11atter what type of new watcr right that Colorado's dO\\TIstream border communities
. may seck: a hydropower pl:mt, a municipal right or any other large new right in a border to\Yn

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