Final
Steamboat Springs Meeting on RICDs

WATER RESOURCES REVIEW COMMITTEE

Votes:
Action Taken:
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8:11 AM - Call to Order

The meeting was called to order at the Sheraton Steamboat Conference Center in Steamboat Springs. This meeting was part of tour of the Water Resources Review Committee in Northwest Colorado. The meeting was held in conjunction with the Colorado Water Congress' summer convention.

8:13 AM - Panel Discussion on Recreational In-channel Diversions

Senator Isgar, Chairman, welcomed the committee and introduced the members of the panel discussion on recreational in-channel diversions (RICD) including Tom R. Sharp, Andrea Benson, David Robbins, Anne Castle, Glenn Porzak, and Sara Duncan.

8:15 AM

Tom R. Sharp, Sharp, Steinke & Sherman, LLC, proposed amendments to SB01-216 that regulates RICDs. This law amended Sections 37-92-102, 37-92-103, and 37-92-305, C.R.S. Specifically, he proposed legislation to limit the amount of a RICD and specify the types of uses that may qualify for a RICD The legislation should also include specifications for RICD control structures and define when RICD owners may call for their RICD during a water shortage. Without these changes, he explained, court decisions may provide inconsistent guidelines for RICD applications.

8:20 AM

Andrea Benson, Alperstein & Covell, P.C., described the role of the Colorado Water Conservation Board (CWCB) in the review of RICD applications and water court litigation (Attachment A). She explained that the CWCB's RICD review process is cumbersome and costly to both the state and the applicant. The CWCB's statutory role in the water court litigation also limits its ability to negotiate terms and conditions with a RICD applicant. She proposed legislation to limit the scope of the CWCB's review process to assessing the impact on instream flow water rights and the impact on Colorado's compact entitlement. The role of the CWCB should also be limited to an advisory role before the water court or the CWCB should be provided greater authority to act as an opposed in water court preceding to protect its decreed instream flows.

8:23 AM

David Robbins, Hill and Robbins, summarized the legal history of instream flow water rights and water rights for recreation including major legislation and recent court decisions. He also proposed legislation to clarify the meaning of the "minimum amount necessary" for a RICD and to limit the location of RICDs that impair Colorado's ability to use its compact entitlement.

8:29 AM

Ann Castle, Special Counsel to the City of Pueblo, described the city's Legacy Project on the Arkansas River and its RICD application (Attachment B). She explained that an intergovernmental agreement was signed in 2004 that protects the RICD from junior users and addresses the concerns of entities that store water in Pueblo Reservoir including the Cities of Aurora, Colorado Springs, and Fountain, the Southeastern Water Conservancy District, and Pueblo Board of Water Works. She also expressed concern about the cost of the RICD review process and proposed an amendment to limit the role of CWCB in this process. Specifically, the CWCB should be limited to advising the water court about the impact of a RICD on instream flows and Colorado compacts entitlement if requested by a RICD applicant. Also, the law should be amended to specify that the amount of a RICD is limited to the specific conditions of the stream and the intent of the applicant.

8:35 AM

Glenn Porzak, Porzak, Browning, & Bushong, LLP, explained that the court awarded decrees for RICDs of the Cities of Golden, Breckenridge, and Vail after settlements were reached with all objectors, except the State of Colorado. He also described settlements with objectors in the City of Steamboat Springs' RICD litigation and summarized the remaining objections of the State of Colorado. He proposed legislation to limit the scope of the CWCB in the RICD review process to assessing impacts on instream flow rights and interstate compact. Also, limits on RICDs should be based on the specifics of the case and not be based on one standard that applies to all RICD applications.

8:41 AM

Sara Duncan, Denver Water, explained that the introduced draft of SB01-216 would have made the CWCB's findings on RICDs binding on the water court. She expressed support for the current law that provides the CWCB with broad authority to consider the unique aspects a RICD application including its intended uses and specific stream and riparian conditions. Ms. Duncan also contrasted RICDs with other water rights that are obtained by diverting water out of a stream for a legally recognized use. The quantity of a RICD is limited to the minimum amount necessary for a reasonable recreational experience; a limit that helps balance RICDs with municipal and other traditional water diversions. She also suggested that the committee consider limiting the ability of RICDs to impact changes of water rights by upstream, senior water rights.

8:48 AM

In response to a question from Chairman Isgar, the panel commented on the RICD review and litigation process. Mr. Robbins explained that the CWCB review process is cumbersome but it provides a consistent review of RICD applications. Mr. Porzak explained that each RICD is unique and that the water court is better able to address these differences and not give undue weight to consumptive water uses over RICDs. Ms. Duncan expressed support for a process that compares the value of RICDs with competing uses of waters.

8:55 AM

Representative Curry asked the panel to comment on the need for clearer statutory guidelines for the CWCB and the water court regarding definition of the waste of a RICD. Ms Duncan described models that have been used to help design whitewater courses and explained that recent court decision may indicate the need for clearer guidelines. Mr. Porzak expressed concern about adopting a single standard for all RICDs. A better alternative may be a limit that is based on the percentage of a stream's historic flows. Ms. Castle suggested that any limits on RICDs be based on injury rather than a general opposition to RICDs. Mr Robbins suggested that additional clarification may be needed to define the types of acceptable RICD control structures. Mr. Porzak expressed concern that the definition of `control structure' in SB05-62 was too restrictive and would not have allowed structures that are demanded by boaters. Ms. Benson explained that the Colorado Supreme Court rejected a uniform standard for RICDs in CWCB v. the Upper Gunnison Water Conservancy District. Rather it said that RICDs should be based on the specifics of the case including stream flow and recreational uses. Mr. Sharp expressed concern about the lack of clear definition of the types of recreational uses that may qualify for a RICD. Such a definition would also help determine the type of control structures that are needed for a RICD.

9:09 AM

In response to question from Senator Isgar, Mr. Sharp expressed concern about the constitutionality of limiting RICDs to a percentage of stream flows rather than an applicant's ability to beneficially use the water. Mr. Robbins expressed concern about restricting calls for RICDs during day time hours due to potential impacts to fisheries from significant changes in stream flows. Senator Isgar expressed concern about the potential impact from RICDs on competing demands for water and asked if RICDs should be treated differently from other water rights. For example should de minimis impacts to RICDs be allowed? Mr. Porzak explained that the value of a water right is based on its priority and expressed concern about limiting the ability of RICD owners to protect their priority. Ms. Duncan explained that the CWCB does not intervene in water court cases for uses that will impose minimal impacts on an instream flow water right. Mr. Sharp expressed concern about potential impacts of a proposed Arkansas River RICD on exchanges during wet years. Ms. Castle expressed concern about reserving wet year flows for future consumptive water uses and Mr. Porzak expressed concern about potential limits on the ability of applicants to accept conditions on RICDs that seek to protect future water exchanges.

9:25 AM

During water shortages, stream flows may fall below the minimum amount necessary for recreational use. However, such flow may be sufficient to provide some benefit to recreational water users. Senator Isgar asked the panel whether calls for a RICD. should be limited under such circumstances. Mr. Porzak explained that a RICD's decree may be based on the minimum amount necessary for expert boaters. However, a portion of the decreed amount may be sufficient to benefit intermediate boaters. Mr. Robbins explained that decrees for irrigation and other consumptive water rights are based on the maximum amount that may be used. In contrast, RICDs are based on the minimum amount necessary for the recreational benefit. Calling for a flow below the RICD's decree may indicate that the RICD exceeds the minimum amount necessary. Consequently, Silverthorne's proposed RICD limits calls for it when stream flows are below 90 percent of the RICD's decree. Ms. Castle explained that RICDs can be built that provide recreational benefits using a range of stream flows.

9:35 AM

Senator Taylor explained that the Colorado Supreme Court's decision in the CWCB v. the Upper Gunnison Water Conservancy District indicates the need for legislation to further define RICD control structures and the minimum stream flow necessary for a RICD. He also suggested that legislation may be needed that specifies the types of recreational uses that may obtain a RICD and expressed concern about the potential impact from RICDs on Colorado's ability to use its water resources. Mr. Robbins expressed concern about the impact on Colorado's ability to use its compact entitlement from RICDs that claim a large portions of the stream flows on Colorado's larger rivers. He also urged the committee to review whether changes are needed to the CWCB's responsibilities concerning the review and litigation of RICDs. Ms. Castle expressed concern about requiring control structures that limit RICDs to flows that are more appropriate for off-channel white water facilities. In response to Senator Taylor, Mr. Porzak described efforts to resolve objections to Steamboat Springs' RICD application.

9:51 AM

In response to a question from Representative Curry, Mr Porzak explained that Steamboat Spring's RICDs application is for flows from 8 AM - 8 PM, and up to ten events held at night that would use artificial lights. Mr. Robbins urged the committee to obtain testimony from the DOW regarding the potential impact on fisheries from ramping flows related to RICD calls. Ms. Castle castle explained that the City of Pueblo's RICD includes minimum base flows to reduce the delay between a RICD call and when it arrives at the RICD.

9:58 AM - Public Testimony

Harold Miskel, CWCB, explained that the CWCB has adopted guidelines for the RICD review process and said that rafters and other users benefit from voluntary releases from water stored on the upper Arkansas River for other purposes. He also requested that CWCB's determinations be given greater effect in water courts and urged the Water Resources Review Committee to consult with the CWCB regarding draft RICD legislation. In response to question from committee, Mr. Miskel explained that the CWCB has the authority to address certain conflicts between an instream flow water right and consumptive water uses.

10:11 AM

Ray Wright, representing himself, explained that he was a former member of CWCB and described the challenge of trying to resolve disagreements between the CWCB and RICD applicants regarding the meaning of "minimum amount necessary" for a RICD.

10:18 AM

Steve Harris, representing himself, proposed legislation to further define control structures that may qualify for a RICD and to quantify the minimum amount necessary for a RICD. Legislation should also clarify that owners may only call for their RICD when the flow will benefit users on the river.

10:22 AM

Jim Spehar, City of Grand Junction, expressed concern about limiting water diversions near the state line due to potential impacts on Colorado's ability to use its compact entitlement.

10:26 AM

Dennis Stickel, representing himself, expressed concern about the cost to applicants of participating in the CWCB in the RICD review process.

10:30 AM

Eric Wilkinson, CWCB member, described the CWCB's RICD review process and the board's difficulty in determining the meaning of the `minimum amount necessary' for a reasonable recreational experience. He also urged that the committee consider legislation that further specifies acceptable RICD structures to help ensure diversions are used efficiently. The General Assembly should also provide guidance to the CWCB regarding how to balance future consumptive water demands with the demand for RICDs.

10:37 AM

Jeff Ollinger, Upper Arkansas Water Conservancy District, suggested that the CWCB be authorized to develop design parameters to determine the amount of water needed for an RICD.

10:39 AM

Brett Gracely, Colorado Springs Utilities, expressed concern about the cost of participating in the CWCB's review process. Even if the CWCB agrees with an objector, he explained, the objector must go to water court to protect their interest because the CWCB's recommendations are nonbinding. Mr. Gracely also expressed concern about the lack of a clear definition in the law concerning the abandonment of a RICD.

10:43 AM

The meeting adjourned.