SB 62, attack on recreational flows in Colorado!
SB 62 is having its hearing before the State Senate Ag committee this Thursday, 1:30pm, in Senate Committee room 353. I would encourage anyone who can make it to come and voice your strong opposition to this bill. If you can not make it in person call your State Senator and tell them this bill will damage the State's economy and tell them stories of the impact you have seen from whitewater parks in your community or parks you have traveled to.
To review...SB 62 is a bill that would change the state law that allows communities to file for RICD (Recreational In-channel, Diversion) water rights for their whitewater parks. Golden was the pioneer, since then Breckenridge, Vail, Gunnision, Steamboat, Pueblo and Salida and BV have filed for these rights. With out going into great detail, RICD's have been embraced by progressive thinkers around the State as a critical chink in the Armour of an outdated system of water rights appropriation which has never seen recreation or water left in the channel as a "beneficial use".
SB 62 will undue all of this forward progress....Here are some talking points on this bill:
AMENDED SB-62 STILL AN ATTACK ON RECREATION
$ The amended bill still subordinates recreational water use Both the CWCB and the Water Court are required to consider the impact of recreational in-channel diversion water rights (RICDs) on all future upstream water storage and water development projects. (Section 1). A water right that cant call for water from junior upstream rights is not a water right. There is no grandfather provision to protect pending applications and decreed rights on this point.
$ Its unconstitutional The Colorado Constitution directs that the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Colo. Const. Art. XVI, § 6. If this means anything, it is that no current beneficial use of water can be denied based on speculative future needs.
$ Caps recreation flows at 350 cfs This is a fraction of what is needed on larger rivers to draw boaters, and a fraction of what has been proved in Water Court as a beneficial use in repeated RICD trials. There is a grandfather provision here, but the protection does not extend to pending applications.
$ Limits RICDs to a minimum stream flow The previous definition of RICD limited the flow to the amount necessary for a reasonable recreation experience. That protection is gone and what is left is simply minimum stream flow. This will certainly be asserted to mean the minimum amount necessary to float a boat. There is no grandfather provision to protect pending applications and decreed rights on this point.
$ Eliminates fishing as a beneficial use of water in Colorado.
$ Changes the diversion statute so RICDs must have a control structure But even the sponsors cannot articulate what the required control structure looks like, and whether the existing structures that so many communities have already built would qualify. This can only be viewed as an attempt to limit RICD rights to the amount that will flow through a notch in a dam (the CWCB's interpretation of the Ft. Collins decision) and not a boating flow. If the current structures do not qualify, do the bill sponsors really want local communities to over-build with larger and more obvious structures simply to meet this new definition? There is no grandfather provision to protect pending applications and decreed rights on this point.
$ Applies retroactively to existing decreed rights and applications The bill sponsors have explained that every provision except the 350 cfs cap is meant to apply retroactively to RICD claims that have already been decreed. Dont change the rules on those cities and towns that have invested in these rights.