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Old 02-04-2005   #1
 
Join Date: Mar 2004
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Anyone familiar with "Recreational In-Channel Diversion

I just stumbled upon Seanate Bill 62 "Recreational In-Channel Diversion". It talks about allowing for water calls foor recreational purpose. That if less then ten kayakers are using the water it shall be deemed WASTED.

You can read the text here http://www.leg.state.co.us/CLICS2005...ile=062_01.pdf

Who's driving this and what is it about?

TIA
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Old 02-05-2005   #2
 
Andy H.'s Avatar
 
Wheat Ridge, Colorado
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A recreational instream flow diversion is a water right to keep water in the river for recreational putrposes. I don't know who's driving this bill but it seems to seek to limit the definition and thus use of recreational instream flow water rights quite a bit. Its stating that unless 10 kayakers (and DOESN'T count rafters, swimmers, tubers, or others who may constitute "recreational users") then an instream flow is being wasted and not being put to "beneficial use."

I'm not a water lawyer and I haven't read the bill a few times (or had my coffee yet...) but I think that if a water right is not being put to "beneficial use," that water right is then subject to review and may be found invalid. If that happens, the water right may get tossed out and then, for example, Golden's recreational water right would be void.

This could be a serious wrench in the works for whitewater parks' instream flow rights.

The bill was introduced by Jack Taylor, (R). Not sure where he's from but it appears to be an effort to limit instream flows and prevent holders of the water rights from challanging future upstream water diversions.

Can anyone else elaborate on what this does?

--Andy
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Old 02-05-2005   #3
 
DanOrion's Avatar
 
Indian Hills, Colorado
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Instream water rights are a headache for upstream water users. Golden's instream right substantially limits Idaho Springs' and Georgetown's ability to bring new water supplies online. Even if these towns can purchase a new senior water right, they will not be able to legally decrease the Clear Creek flow at Golden due to the instream recreational right.

Instream recreational rights are typically for all the physical water available at the time the court application is made. This essentially freezes future development all the way up the drainage basin.

Now, if you are anti-development, this is probably welcome, but senators and congressmen depend on increasing tax base for fat wallets. Allowing for future development ensures future growth of the tax base.

SB 05-062 seeks to take the case law from Golden's whitewater park and put some more clear legal definitions on "recreational in-channel use." This is probably a good thing. We should be contacting our senators and congressmen to tell them our suggestions of how to define "recreational in-channel use."

SB 05-062 defines "recreational in-channel use" as kayaking, but not any other water sports. Clearly, this definition needs to be expanded to cover all river activities that get you wet from head to toe.

SB 05-062 also states that water is "wasted" (not used beneficially) if less then ten kayakers are below a control structure. If the bill passes with this language, upstream users will not be required to respect a downstream instream recreational water right (like Golden) unless ten kayakers are using it simultaneously. This is overly restrictive and will probably result in upstream users ignoring instream recreational water rights as a matter of habit.

I'll keep thinkin on this one. We should get a draft letter together to our senators together, post it on this site, so boaters can copy, paste, print, sign, mail and let our voice be heard.

-Dan
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Old 02-05-2005   #4
 
The next zone, .
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This is the information that I have on SB62.

I will have to disagree with Dan and IMO this bill in this form should be opposed by all boaters. With the 10 kayaker rule it will essentially undermine all RICD filings (12 hrs of every day is night so in all sections and areas that have filed for RICD will have ½ the total day at less than 10 users).

If language beneficial to boaters and river users is added and the 10 kayaker rule taken out it could help keep water in the ditch but as written this bill will enviably diminish the ability of RIDC’s to help with what we all want, water in the rivers.

This smells to me like yet another way to make it easier for the thirsty front range to “exchange water” (or make it easier to get around RICD’s and move more western slope water to thirsty blue grass lawns). It also depends on how you see "upstream users" One quick and simple example of this is Aurora buying shares of the Rocky Ford ditch and pulling the water out above the numbers at the Otero Pump Station (not letting it flow down to Rocky Ford). I do not see how Aurora should be considered an "upstream user" of water in comparison with Buena Vista.

Also Jack Taylor is R – Steamboat area. IMO a lame attempt at getting a "western slope" face on the bill.

Here is a set of quick facts on SB62. You can read and decide for yourself.




Senate Bill 62 – Limiting Recreational Water Use

History: Water-based recreation and tourism contribute significantly to Colorado’s economy and quality of life. As early as 1992, the Colorado Supreme Court recognized recreational, in-channel use of water as “beneficial” under Colorado law and approved Fort Collins’ claim for a water right for a structure that diverts water in-channel for recreational purposes. Different from an in-stream flow right held by the Colorado Water Conservation Board (“CWCB”) to preserve or improve the environment, recreational in-channel diversion (“RICD”) water rights require that water be diverted or controlled in-channel for a recreational use. With the increasing popularity of recreational activities such as kayaking, rafting and tubing, today RICD water rights are a very important component of Colorado’s water law.

Following the Fort Collins case, in 2001 the General Assembly enacted Senate Bill 216. SB 216 recognizes the legitimacy of RICD water rights but places certain limitations on RICDs. For example, the legislation limits the appropriation of RICD water rights to cities, counties, water districts and other types of local governmental entities and defines an RICD as “the minimum stream flow as it is diverted, captured, controlled, . . . and placed to beneficial use pursuant to an application filed . . . for a reasonable recreation experience." Under the legislation, first the CWCB and then the water court evaluate the appropriateness of an RICD claim according to a set of factors, including the impact of the RICD on Colorado’s interstate compact entitlements and the goal of maximizing utilization of Colorado’s waters.

Present: The conditions and limitations that exist for RICDs that don’t exist for other diversionary water rights include not just the CWCB hearing, but also the limitation on the type of appropriators (government bodies only) and the factors by which RICDs are evaluated (most importantly, impact on maximum utilization and consumptive use of compact entitlements). No other diversionary water rights are limited to particular categories of appropriators or are evaluated based on impact to maximum utilization or compact entitlements. SB 216 is presently before the Colorado Supreme Court, and it is likely that the Court will issue an opinion further defining the exact scope of the legislation in the next several months. Now, however, before the Court has the opportunity to present its interpretation of the present legislation, some in the General Assembly propose to further restrict RICDs and the corresponding ability of local governmental bodies to improve their economies and quality of life through the development of water-based recreation.

What SB 62 changes: State Senator Jack Taylor (R-Steamboat Springs), has introduced a bill that would
• allow RICD rights only for kayaking, and not for other forms of recreation such as rafting, canoeing, fishing or tubing. While kayaking may be the most frequent use of RICDs, this short-sited restriction will disable municipalities from using RICDs to create other legitimate, and economically important, recreational opportunities.
• require that water be deemed wasted and not beneficially used any time there are fewer than ten kayakers at the diversion structure. This unique use limitation, with no analogue in Colorado water law, will be difficult to administer and discriminates against municipalities with smaller populations or situated on smaller streams capable of accommodating fewer users.
• require the CWCB and the water court to evaluate the RICD based on the impact to future upstream water use. Every water right, whether for an RICD or a more traditional consumptive use, impacts future upstream water development, but under the proposed legislation, RICDs would be the only class of water rights required to make way for future uses.
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Old 02-05-2005   #5
 
Mike Harvey's Avatar
 
Salida, Colorado
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SB 62 is a very bad deal for paddlers in this state. We should think about this in broad terms. RICD legislation is a chink in the armor of an outdated system of water law in this state that assigns no value to water left in the channel. This bill is a blatant attempt to undermine the progress that has been made. Call your reps and get all over this one.
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Old 02-05-2005   #6
 
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RICD

Well, the way it was explained to us at the last AHRA CTF meeting was that the RICD is SO junior in the terms of seniority, and allpies only to Native flows, that the only real effect will be to hamper water users from transferring, and or moving water as Dan suggested. It as well has the possibility of jeopardizing the long standing flow program on the Arkansas river. From my understanding, both the DOW and Trout Unlimited are vehemently opposing this, as well as the RICD, given the relative clout that these entities have, I rather doubt that any of this will ever pass.

Just my opinion and observations, I could be wrong.
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Old 02-05-2005   #7
b2
 
Join Date: Feb 2005
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I just received an action alert from a local-Durango based- conservation group which I will include. RDNEK had a good synopsis and I agree with M Harvey that this bill must be aggressively fought. It is bad for current water parks, as their rights will be questioned and possibly challenged in costly court battles. It is bad for any Cities looking at getting RICDs. In general it will make it harder to justify leaving water in stream for recreation. It is hard enough to get an RICD as the law currently stands. Please call, write, or email your local state representative and let them know that you don't agree with SB 62. Leaving this to the fishermen to fight is passing the buck. We are the ones that use, lobby for, and build the RICDs. I think it is only right that we should take the same amount of time that many users on these forums spend ranting about the lack of good features and play parks etc. and do something constructive to save what gains have been made in CO water law that allows us to keep water in our favorite rivers. Time to activate my Brothers and Sisters, times a wastin! Here is a link where you can get contact info for your state reps:
http://www.leg.state.co.us/Clics2005...y?openframeset

The following is the action alert that I received from my friends at the San Juan Citizens Alliance and contact information for the state representatives from SW CO:
ALERT
Act before February 10

RECREATIONAL IN CHANNEL DIVERSIONS UNDER ATTACK
Senator Jack Taylor of Steamboat has introduced SB 62 to change the conditions surrounding the appropriation of water for Recreational
In Channel Diversions. This is the type of water right that allows governmental entities like cities and counties to keep water in the stream
for use in boat parks. This is the only way that one can directly protect water in the stream in sufficient quantities for recreational
purposes.

There will be a hearing in the Senate Agriculture Committee on the 10th of February to consider SB 62. We need letters, calls and e-mails
to protect this right under Colorado water law. The only other Instream Flow Rights permitted under Colorado law are small amounts
that can be protected for environmental purposes. RICD’s benefit the environment as well as recreation.

Protecting flows from future development
The increasing development in Colorado is causing increased diversion and damming of our rivers. If we do not act to stop this bill our
future opportunities to secure flows for water in the river will be severely limited. Water based recreation is important to many
communities and they should be able to hold rights to protect their economic interests.

Facts and Questions that our legislators should consider:
* It would retroactively diminish all existing recreation instream rights. This means that towns such as
Vail, Golden, and Aspen will lose existing rights for flows in their boat courses.

* There is a case in the Colorado Supreme Court, which would clarify existing RICD law. The legislation should not be put in place until
their decision is announced. More legislation is premature.

* Water based recreation is important to many towns. Is it fair for us to deny them this opportunity to protect quality of life and economic
development related to recreation? Durango, Gunnison and Steamboat Springs and Palisade are currently working on RICD’s.

* Should we subordinate recreational use to any and all possible future upstream development, as this bill would do?

* SB 62 would limit reasons for recreational rights to use by kayaks. Does this even make sense? Is this constitutional?

Most agriculture rights are older than any recreation right. RICD's will not really harm agriculture.

Senator Isgar: 303-866-4884 or isgarsenate@frontier.net

Senator Taylor: 303-866-5292

Rep. Mark Larson: 303-866-2914 marklarson@gobrainstorm.net

For More Information Call Chuck at the San Juan Citizens Alliance 970-259-3583 or
cwanner@frontier.net
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Old 02-08-2005   #8
 
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Indian Hills, Colorado
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I'm glad to see discussion of this bill! Thanks to all for educated and informed comentary.

After spring runoff, we Kayakers depend on the whims of water authorities for floatable flows at many locations. To that end, is important that we are recognized as a proactive, informed and educated group.
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Old 02-10-2005   #9
b2
 
Join Date: Feb 2005
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Dan Orion,

I have a form letter written, as you suggested, for easy copy and paste. Please email me at brian@frontier.net and I will forward it to you to look at.

thanks,
b2
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Old 02-10-2005   #10
 
Join Date: Oct 2003
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Locally, the fight is on to defeat the bill as the City of Steamboat has said that it will do whatever it takes.

http://www.steamboatpilot.com/sectio...ve/story/28188

FWIW, Routt County voters actually voted against Taylor in the last election. Taylor was strongest in the counties where energy and agriculture reign, and he sees his loss in his home county of Routt as being emblematic of changing demographics.

Water was the main issue....

[/u]
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