BOARD01483

• Board Meeting Date: 7/24/2000
• Description: ISF Section - Recreational Instream Flows - Policy Discussion
• Board Meetings - Doc Type: Memo

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July 17,2000

Dear Ted:

Thank you for including me on themailinglistforyourinstreamflowmemorandum.As
you may know, most western states limit appropriation of instream flows to one or a few
government agencies, to avoid exactly the concerns you express. I had the chance to put together
a little article on instream flow programs in the West a couple of years ago, and would be happy
to send it to you if you want. I was really interested in the fact that there is considerable variation
in the state programs, some of which allow private instream flow appropriations for recreational
purposes. It might be instructive to find out how recreational instream flow programs actually
work in these states. (It seems to me that they could be an administrative nightmare, if there are
overlapping reaches, for example,)

I believe that recreational instream flows are appropriate, and recognize the importance
of tourism to the Colorado economy. It would be preferable to have recreational instream flows
appropriated by the CWCB. In my opinion, the legislation should be changed to permit the
CWCB to appropriate recreational instream flows. The purposes, identification, quantification,
and methods of administration of recreational instream flows should be determined pursuant to a
process which allows for a public debate. In other words, the CWCB would need to establish
rules identifying appropriate recreational purposes, and defining what is a "minimum flow" for a
particular recreational purpose, how it is quantified, etc. and the CWCB's rules and the SEa's
rules will need to be coordinated regarding placement of calls, how the recreational instream flow
will be operated, when calls can be placed, how the right will be operated together with
traditional water rights, etc. (One of the issues I see with kayak courses, for example, is
whether the owner gets to place a call all the time just in case someone might want to kayak at
any given time. This seems to be inappropriate unless there is some way to address upstream
exchanges.) Development and implementation of rules require important policy decisions to
balance recreational demands with more traditional water use demands, and deserve a public
debate. I presume this would occur in a rulemaking proceeding in the first instance,

My recommendation is that the CWCB be permitted to appropriate instream flows for
recreational purposes, and that the statute make clear that other entities cannot, although such
entities should be able to recommend that the CWCB consider particular appropriations, and the
CWCB should do so. (For example, a city that wants to spend a large amount of money to
develop a kayak course should be able to ask the CWCB to consider a recreational appropriation
for that purpose, and the CWCB should timely do so.) A statutory change would only be
meaningful if the CWCB actually develops some rules for recreational appropriations, and makes
them, I realize this is a huge task, the rulemaking will be quite difficult, and the budget is limited.
Nevertheless, Colorado as a whole will be better served by a recreational instream flow program
which has been defined through a public rulemaking process, rather than one that evolves
piecemeal as cases proceed through the courts.

Thanks again for the opportunity to comment.

Sincerely yours,

Cynthia F, Covell (via email)