SENATE 3rd Reading Unamended March 3, 2006 SENATE Amended 2nd Reading March 2, 2006Second Regular Session Sixty-fifth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 06-0136.01 Thomas Morris SENATE BILL 06-037 SENATE SPONSORSHIP Isgar, HOUSE SPONSORSHIP Curry, Senate Committees House Committees Agriculture, Natural Resources & Energy A BILL FOR AN ACT Concerning the adjudication of recreational in-channel diversions. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Water Resources Review Committee. Modifies the requirements applicable to the adjudication of a recreational in-channel diversion ("RICD") by:  Deleting 2 of the required factors and the discretionary factor with regard to which the Colorado water conservation board was required to make findings of fact;  Deleting the requirement that the board make a recommendation regarding whether the application should be denied, granted, or granted with conditions;  Changing the definitions of "recreational in-channel diversion" and "diversion" and adding definitions of "control structure" and "reasonable recreation experience". Limits the definition of "reasonable recreation experience" to kayaking;  Requiring the water court to make specific findings regarding the application;  Limiting the use of RICDs to specified hours from April 1 to Labor Day and specifying that a call will be administered only if it results in delivery of at least 90% of the decreed rate of flow for the applicable time period; and  Requiring the water court to retain jurisdiction for at least 20 years to allow reconsideration of the decree. Applies the act only to applications for and the administration of new RICDs filed on or after the effective date of the act. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 37-92-102 (6) (a), (6) (b), and (6) (c), Colorado Revised Statutes, are amended to read: 37-92-102. Legislative declaration - basic tenets of Colorado water law. (6) (a) Following a public hearing, if requested by any party, the board shall make findings of fact and a final recommendation as to whether the application should be granted, granted with conditions, or denied. (b) In determining whether the board shall recommend that the water court grant, grant with conditions, or deny such application, The board, after deliberation in a public meeting, shall consider the following factors and make written findings thereon as to each: (I) Whether the adjudication and administration of the recreational in-channel diversion would materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (II) The appropriate reach of stream required for the intended use; (III) Whether there is access for recreational in-channel use; (IV) Whether exercise of the recreational in-channel diversion would cause material injury to instream flow water rights appropriated pursuant to subsections (3) and (4) of this section; and (V) Whether adjudication and administration of the recreational in-channel diversion would promote maximum utilization of waters of the state. as referenced in paragraph (a) of subsection (1) of this section; and (VI) Such other factors as may be determined appropriate for evaluation of recreational in-channel diversions and set forth in rules adopted by the board, after public notice and comment. (c) Within ninety days after the filing of statements of opposition, the board shall report its findings to the water court for review pursuant to section 37-92-305 (13). The board may defend such findings through participation fully participate in the water court proceedings. SECTION 2. 37-92-103 (7) and (10.3), Colorado Revised Statutes, are amended, and the said 37-92-103 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read: 37-92-103. Definitions. As used in this article, unless the context otherwise requires: (6.3) "Control structure" means a structure consisting of durable man-made or natural materials that has been placed with the intent to divert, capture, possess, and control water in its natural course for an appropriator's intended and specified recreational in-channel diversion. The control structure and its efficiency shall be approved pursuant to section 12-25-102, C.R.S., by, or under the direct supervision of, a professional engineer and constructed so that it will operate efficiently and without waste to produce the intended and specified reasonable recreation experience. Concentration of river flow by a control structure constitutes control of water for a recreational in-channel diversion. (7) "Diversion" or "divert" means removing water from its natural course or location, or controlling water in its natural course or location, by means of a control structure, ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device; except that, on and after January 1, 2001, only a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district may file an application to control water in its natural course or location by means of a control structure for recreational in-channel diversions. This does not apply to applications filed prior to January 1, 2001. (10.1) "Reasonable recreation experience" means the use of a recreational in-channel diversion for, and limited to, boating. Other recreational activities may occur but may not serve as evidence of a reasonable recreation experience. (10.3) "Recreational in-channel diversion" means the minimum amount of stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district for a reasonable recreation experience in and on the water, between one half hour after sunrise to one half hour after sunset from April 1 to Labor Day of each year unless the applicant can demonstrate that there will be demand for the reasonable recreation experience in additional hours or months. Each control structure for a recreational in-channel diversion shall be limited to no more than three specified flow rates in any time period. There shall be a presumption that there will not be material injury to a recreational in-channel diversion water right from subsequent appropriations or changes of water rights if the effect on the recreational in-channel diversion caused by such appropriations or changes does not exceed one-tenth of one percent of the lowest decreed rate of flow for the recreational in-channel diversion as measured at the recreational in-channel diversion and the cumulative effects on the recreational in-channel diversion caused by such appropriations or changes do not exceed two percent of the lowest decreed rate of flow for the recreational in-channel diversion measured at the recreational in-channel diversion. The owner of a water right for a recreational in-channel diversion may not call for water that has been lawfully stored by another appropriator. SECTION 3. 37-92-305 (13), Colorado Revised Statutes, is amended to read: 37-92-305. Standards with respect to rulings of the referee and decisions of the water judge. (13) (a) The water court shall apply the factors set forth in section 37-92-102 (6). All consider the findings of fact contained in the recommendation of made by the Colorado water conservation board pursuant to section 37-92-102 (6) (b) regarding a recreational in-channel diversion, which findings shall be presumptive as to such facts, subject to rebuttal by any party. In addition, the water court shall consider evidence and make affirmative findings that the recreational in-channel diversion will: (I) Not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (II) Promote maximum utilization of waters of the state; (III) Include only that reach of stream that is appropriate for the intended use; (IV) Be accessible to the public for the recreational in-channel use proposed; and (V) Not cause material injury to instream flow water rights appropriated pursuant to section 37-92-102 (3) and (4). (b) In determining whether the intended recreation experience is reasonable and the claimed amount is the appropriate flow for any period, the water court shall consider all of the factors that bear on the reasonableness of the claim, including the flow needed to accomplish the claimed recreational use, benefits to the community, the intent of the appropriator, stream size and characteristics, and total streamflow available at the control structures during the period or any subperiods for which the application is made. (c) If a water court determines that a proposed recreational in-channel diversion would materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements, the court shall deny the application. The decree shall specify that the state engineer shall not administer a call for a recreational in-channel diversion unless at least eighty-five percent of the decreed rate of flow for the applicable time period would be produced by the call. (d) The water court may retain jurisdiction over a recreational in-channel diversion, during which time it may consider abandonment of the decree in whole or in part and the factors specified in paragraph (a) of this subsection (13) upon motion of the state engineer. SECTION 4. Applicability. This act shall apply only to applications for and the administration of new recreational in-channel diversions filed on or after the effective date of this act. SECTION 5. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.