BOARD00920

• Board Meeting Date: 5/23/2005
• Description: WSP Section - Request to Initiate Rulemaking regarding RICDs
• Board Meetings - Doc Type: Memo

STATE OF COLORADO

. Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street,. Room 721
Denver, Colorado 80203
Pho!\e: [phone]
PAJ<:[phone]
wvvw.cwcb.state,co.us

MEMORANDUM

Bill Owens
Governor

To: CWCB Members

From: Ted Kowalski, Manager RICD Program

Date: May 16, 2005

Re: Agenda Item 16, May 23-25, 2005 Board Meeting - Water Supply
Protection Section - Request to Initiate RuIemaking regarding RleDs;

Russell George
Executive Director

Rod Kuharich
CWCB Director

Dan McAuliffe
Deputy Director

.

Background
Since the passage of Senate Bill 216, in 2001, six entities have applied for RICD water rights. The
Board has held four hearings, and two more hearings will occur in by the end of July 2005. In
addition, after the Supreme Court decision involving the water rights application ofthe Upper
Gunnison River Water Conservancy District (hereinafter referred to as the "Gunnison decision"),
there may be as many as three cases remanded back to the Board. The Staff is aware of at least
eleven other communities that are developing whitewater parks or that may file for an RICD for
existing whitewater parks.

Pursuant to Senate Bill 216, and confirmed by the Gunnison decision, the Board and water courts
, must review ~ach of six factors as laid out by Senate Bill 216. The_first five enumera!ed factors may
.., be referred to in shorthand as:J) whether there is lldequate access; 2) whether the RICD is in an
appropriate stream reach; 3) whether the RICD would impair Colorado's ability to consumptively
use its compact entitlements; 4) whether the RICD impacts instrearn flow water rights; and 5)
whether the RICD promotes maximum utilization. The sixth factor states: "such other facts as may
be detennined appropriate for evaluation of recreational in-channel diversions and set forth in rules
adopted by the board, after public notice and comment." The Supreme Court specifically confirmed
that the water court and the Board must consider additional factors adopted pursuant to Section 37-
92-l02(6)(b)(VI). But the Supreme Court noted: ''No additional factors have been set forth in rules
adopted by the CWCB pursuant to this provision."

Since the Board originally adopted the RICD rules in 2001, the Board has developed an expertise in
RICDS and the Supreme Court has provided guidance. Thus, the Board rules include additional
factors and sub-factors that the Board should adopt pursuant to Section 37-92-l02(6)(b)(vD, C.R.S.
The attached version of the Board's Rules provides appropriate additional factors and sub- factors for
the Board's consideration.

~

Colorado Water Conservation Board
Flood Protection. Water Supply Planning and Finance'. Stream and Lake Protection
Wate~ Supply Protection. Conservation and Drought Planning