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<br />,~""= <br />__c'- <br /> <br />--~L <br /> <br />. <br /> <br />STATE OF COLORADO <br /> <br />Colorado Water Conservation Board <br />Department of Natural Resources <br />1313 Sherman Street, Room 721 <br />Denver, Colorado 80203 <br />Phone: (303) 866-3441 <br />FAX: (303) 866-4474 <br />www.dnr.state.co.us/cwcb <br /> <br />Q <br /> <br />Bill Owens <br />Governor <br /> <br />MEMORANDUM <br /> <br />Greg E. Walcher <br />Executive Director <br /> <br />To: <br /> <br />Colorado Water Conservation Board Members <br /> <br />Dan McAuliffe <br />Acting CWCB <br />Director <br /> <br />From: Dan McAuliffe <br />Dan Merriman <br />Ted Kowalski <br /> <br />Date: July 17, 2000 <br /> <br />Re: <br /> <br />Agenda Item 9, July 24-25, 2000, Board Meeting-- <br />Stream and Lake Protection - Recreational instream flows, policy discussion <br /> <br />. <br /> <br />GENERAL BACKGROUND <br /> <br />At the May 2000 CWCB meeting, the CWCB discussed the recent trend by <br />municipalities to appropriate instream flow water rights for boating andlor piscatorial <br />purposes ("recreational instream flows"). Golden, Littleton, and the Upper Gunnison <br />River Water Conservancy District have recently filed for recreational instream flows. <br />Other Colorado municipalities have developed boating courses, and their water rights <br />applications may soon follow. In a recent law review article, the authors commented on <br />Golden's 1998 application: "[W]hile the water court may be precluded from considering <br />the public policy implications of granting Golden what amounts to a large instream flow <br />right and a gatekeeping function over an entire watershed, the legislature or the Supreme <br />Court through judicial interpretation of waste and reasonable use, or a review of City of <br />Thornton v. City of Ft. Collins, may soon be required to address this important issue." <br />Such a "wait and see" approach could prove highly detrimental to the people of <br />Colorado. The purpose of this paper is to generate a discussion about recreational flows, <br />and their proper integration into Colorado water law. <br /> <br />. <br /> <br />Current legal framework <br />Under Colorado water law, the State of Colorado may appropriate "minimum <br />flows between specific points on natural streams as are required to preserve the natural <br />environment to a reasonable degree." Section 37-92-103(4), C.R.S. (1999). This <br />exclusive authority is explicitly given to the CWCB in section 37-92-102(3). The statute <br />