DEPARTMENT OF NATURAL RESOURCES Colorado Water Conservation Board RECREATIONAL IN-CHANNEL DIVERSION RULES 2 CCR 408-3 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ 1. Title Rules Concerning Recreational In-Channel Diversions, adopted pursuant to section 37-92-102, C.R.S., and hereinafter referred to as the “RICD Rules.”

2. Purpose of Rules The purpose of these rules is to set forth the procedures to be followed by: 1) applicants for Recreational In-Channel Diversions (hereinafter referred to as “RICDs” ); and 2) the Colorado Water Conservation Board (hereinafter referred to as “board” ) when making Findings of Fact and recommendations to a water court regarding RICDs . In addition, the purpose of these rules is to provide guidance about the type of information that will assist the board in making its findings and recommendation to the water court. The board has incorporated into these rules, the statement of basis and purpose prepared and adopted at the time of the rulemaking. These rules will supercede the RICD Rules adopted on November 8, 2001, codified at 2 CCR 408-3, and they are intended to apply to applications that will be reviewed by the board after the effective date of these rules. However, they will not apply to applications that have already been reviewed by the CWCB, even if the CWCB may conduct further reviews (i.e. the applications of the Upper Gunnison River Water Conservancy District and Chaffee County).

3. Statutory Authority The General Assembly specifically recognized the appropriation and adjudication of RICDs by local governmental entities, pursuant to sections 37-92-102, 37-92-103, & 37-92-305, C.R.S. The statutory authority for these rules is found at section 37-92-102(6)(b)(VI), C.R.S. By promulgating these rules, the board assumes no liability related to RICDs and expressly does not waive its sovereign immunity under Article 10, Title 24, C.R.S.

4. Definitions a. Applicant. Means a local governmental entity that has filed a water court application for a RICD on or after January 1, 2001.

b. Application Receipt Date. Means the date that the board receives a copy of the RICD application.

c. Application. A water court application filed with the CWCB for consideration under these rules.

d. Beneficial Use. Is defined as stated in Section 37-92-103(4), C.R.S., which is incorporated herein by reference.

e. Board. Means the Colorado Water Conservation Board as defined in sections 37-60-101, 103 and 104, C.R.S.

Code of Colorado Regulations 1 f. Board’s Office. Means the Colorado Water Conservation Board’s office, located at 1313 Sherman Street, 7th Floor, Denver, CO 80203. The phone number is (303) 866-3441. The facsimile number is (303) 866-4474. The board’s website is http://www.cwcb.state.co.us.

g. Compact Entitlements. Means all of Colorado’s water entitlements pursuant to interstate compacts, equitable apportionments, supreme court rulings designating water apportionments, or any other legally recognized designation of apportionment of interstate waters.

h. Director. Means the director of the Colorado Water Conservation Board, who is the chief administrative head of the board, under the direction and supervision of the board, and who has general supervision and control of all its activities, functions, and employees.

i. Findings of Fact and Recommendation. Means the written factual findings of the board regarding the factors set out in section 37-92-102(6), C.R.S. and the RICD Rules and the written recommendation of the board to the water court as to whether an application for a RICD should be granted, granted with conditions, or denied.

j. Hearing Coordinator. Means the person appointed by the director to be responsible for establishing the procedures, to the extent not otherwise set forth herein, which will govern the conduct of any public hearing on a RICD.

k. Instream Flow (hereinafter referred to as “ISF” ). Means any water, water rights or interests in water appropriated or acquired by the board, pursuant to section 37-92-102(3), C.R.S., for the preservation of the natural environment to a reasonable degree. Pursuant to section 37-92- 102(3), C.R.S., no other person or entity may appropriate such rights, for any purpose whatsoever.

l. Local Governmental Entity. Means a Colorado entity authorized to appropriate a RICD and includes a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district.

m. Party. Means any person who has filed a statement of opposition to a RICD, or any person who has filed for party status pursuant to Rule 10 of the RICD Rules.

n. Person. Means an individual, a partnership, a corporation, a municipality, the state of Colorado, the United States, or any other legal entity, public or private.

o. Reasonable Recreation Experience. Means an experience in and on the water that would allow individuals with suitable skills and abilities relating to the specific recreational activity for which the water right is being sought to partake in that activity including any objectively reasonable recreation experience of the type identified in the RICD application in and on the particular stream in question.

p. Recreational In-Channel Diversion. Means “the minimum 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 local governmental entity for a reasonable recreation experience in and on the water.” § 37-92-103(10.3), C.R.S. (2004).

q. Staff. Means the Director and other personnel employed by the board.

5. Optional Pre-Application Process Prior to submitting an application to the water court or to the board, the board encourages the applicant to meet with staff to discuss the proposed RICD application and the procedures to be followed by the board Code of Colorado Regulations 2 to review the application. Staff will provide input regarding how the proposed application can meet the intent of the RICD rules.

6. Submissions Required from an Applicant Within 30 days after filing an application for a RICD with any water court, an applicant shall submit a copy of the application to the board office, pursuant to section 37-92-102(5), C.R.S.

7. Required Findings The board is required to make certain factual findings relative to each RICD application. § 37-92-102(6), C.R.S. The statutory definition of RICD requires that the applicant claim only the minimum stream flow, that the flow would be used for a reasonable recreation experience in and on the water, and that the flow be diverted, captured, controlled, and placed to beneficial use. The required findings on factors are:

a. Whether the adjudication and administration of the RICD, in the amounts claimed, would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements. The board, in making this finding, may consider, but is not limited to, the following:

1. i. The amount and location of remaining unappropriated compact entitlement waters in the basin in question and at the RICD point of diversion;
2. ii. The proximity of the RICD to the state line;
3. iii. The proximity of the RICD to suitable upstream points of diversion or storage which may be utilized by those who would place the water to consumptive beneficial use;
4. iv. The existence of suitable downstream points of diversion or storage for consumptive beneficial uses before the water leaves the state;
5. v. Exchange opportunities within the state that may be adversely impacted by the existence of the RICD;
6. vi. Whether the basin is over-appropriated;
7. vii. The effect on other decreed, existing undecreed, or reasonably foreseeable uses of the amount of water claimed;

   viii. Whether a RICD shields waters from a consumptive use that would otherwise be available under a particular compact;

8. ix. Whether beneficial consumptive water use opportunities upstream from the claimed RICD would further develop Colorado’s compact entitlements and would be impaired by applicant’s sought for stream flow amounts; and, x. What provisions in the application are proposed for reducing or canceling the RICD?

b. Whether the RICD appropriation is for an appropriate reach of stream for the intended use. The board, in making this finding, may consider, but is not limited to, the following:

1. i. The nature of the identified reasonable recreational experience for which the RICD is sought;
2. ii. The length of the proposed RICD reach;

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1. iii. Whether the RICD can be adequately measured and administered through the proposed reach;
2. iv. Whether the applicant has complied with all federal and state statutes and regulations regarding flooding, flood control, the one-hundred year flood elevations, and river channel manipulation, or whether the applicant agrees to include a term and condition in the decree that it will comply with all federal and state statutes and regulations regarding flooding, flood control, the one-hundred year flood elevations, and river channel manipulation;
3. v. Whether the RICD in its proposed location can adequately pass all flows up to and including the 100-year (1% probability) flood flow without causing adverse impacts to upstream, downstream, or adjacent property owners or whether the applicant agrees to include a term and condition in the decree that the RICD structures will be constructed in such a manner as to adequately pass all flows up to and including the 100-year (1% probability) flood flows without causing adverse impacts to upstream, downstream, or adjacent property owners;
4. vi. The environmental effects of the proposed RICD;
5. vii. Whether the water depth in the stream reach is at least the minimum depth needed for the identified reasonable recreation experience; and, viii. Whether the RICD is located in a stream reach with an appropriate width for the identified reasonable recreation experience.

c. Whether there is access for recreational in-channel use. The board, in making this finding, may consider, but is not limited to, the following:

1. i. The nature and extent of the access required for the identified reasonable recreation experience for which a RICD is being sought;
2. ii. The ownership, leasehold, or other legal interest held by or available to the applicant for purposes of obtaining access; and, iii. Any impediments to the applicant obtaining access necessary for the intended identified reasonable recreation experience.

d. Whether the exercise of the RICD would cause material injury to existing ISF water rights. The board, in making this finding, may consider, but is not limited to, the following:

1. i. The nature and extent of the ISF in the proposed reach or any affected downstream reach;
2. ii. The timing and duration of the RICD as such may relate to the specific natural environment for which the ISF was decreed;
3. iii. Whether the RICD, or administration of the RICD, would negatively impact the natural environment for which the ISF was decreed; and, iv. Whether during the construction of the RICD structures, the construction may cause material injury to the ISF or the natural environment for which the ISF was decreed.

e. Whether the adjudication and administration of the RICD, in the amounts claimed, would promote maximum utilization of the waters of the State. The board, in making this finding, may consider, but is not limited to, the following:

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1. i. Whether there are any probable future upstream junior appropriations for direct diversion or storage;
2. ii. Whether there are any probable future changes, transfers, or exchanges of water rights from points of diversion downstream of the reach affected by the RICD to points upstream of or in the reach affected by the RICD;
3. iii. Whether existing federal policies, regulations and laws affect or will be affected by the RICD;
4. iv. Whether a reasonable and efficient means is to be utilized to use, divert, capture and control the water for a RICD so as to minimize its call upon the river and avoid waste;
5. v. Whether a reasonable demand exists for the recreational activity in question as determined by levels of current use and/or estimates of future use;
6. vi. Whether the application has appropriate limitations upon the time of day, days per month, or seasons during which the RICD would be exercised;
7. vii. The depth and flow rate of the proposed RICD;

   viii. With what frequency and duration, and from what sources, the requested amounts of water for the RICD occur;

8. ix. The economic effects of the proposed RICD;
9. x. The environmental effects of the proposed RICD;
10. xi. The relationship of the requested RICD flow rates to the historic appropriated and unappropriated flow rates for each time period requested;
11. xii. The effect of the RICD on other potential uses of water; xiii. Whether the application as a whole meets the elements of the definition of a RICD, as found in section 37-92-103(10.3);
12. xiv. Whether the RICD would conserve and efficiently use the available stream flow, thereby promoting maximum utilization of Colorado’s water resources;
13. xv. Whether the RICD will make the river basin water critical and describe the resulting impact on existing water rights and users;
14. xvi. Whether the RICD may work together with existing and/or future uses within the State of Colorado to promote maximum utilization;

    xvii. Any provision in the application for reducing or canceling the RICD; xviii. A description of each recreational opportunity sought by the applicant at each flow amount sought, and why the flow amount is the minimum amount for each reasonable recreation experience sought;

15. xix. The historic frequency and flow rates of imported water and reservoir releases through the proposed RICD reach, and whether such flows will be necessary to meet the flow rates claimed for the proposed RICD; and, Code of Colorado Regulations 5 xx. Whether, and to what extent, unappropriated native flows exist in the proposed RICD stream reach during the periods claimed, and the percentage of unappropriated flows claimed by the RICD.

f. Pursuant to section 37-92-102(6)(b)(VI), an additional factor that is appropriate for evaluation of RICD applications is whether the application meets the elements of the definition of a RICD as found in section 37-92-103(10.3). This requires the amount claimed to be the “minimum stream flow” and that it be for a “reasonable recreation experience.” The board should consider whether the requested RICD physical control structures divert, capture, control and place to beneficial use the water claimed.

8. Additional Information Because section 37-92-102(6)(b), C.R.S. requires the board to report its findings within 90 days after the closing date for the filing of statements of opposition, an applicant may elect to provide additional information at the time it submits its application to the board. The following types of information would assist the board in making its findings and recommendation:

a. A description of structures, including design plans for the physical control structures, engineering data and calculations used to design the facilities associated with the application;

b. Maps showing the location of all physical control structures and access points;

c. Evidence, including hydraulic and hydrologic calculations, that the physical control structures are capable of diverting, capturing, and controlling water within the stream channel;

d. Documentation describing the nature of the recreational experience sought;

e. Documentation identifying and/or justifying the time of day and season of use sought;

f. Evidence that the amounts requested in the RICD application are available for appropriation;

g. Information about the frequency of occurrence of the requested stream flows, including exceedance calculations and duration curves for the claimed stream flows;

h. Information demonstrating that the amount of water claimed is the minimum amount necessary to achieve the reasonable recreation experience sought.

i. Information about all necessary permits and the status thereof, including existing or proposed permit terms and conditions;

j. List of persons notified by the applicant about the RICD;

k. Documentation of the effects that the RICD and the associated structures will have on flooding, flood control and the one-hundred year flood elevations; and, l. Information about existing or proposed gages on the affected stream that may be utilized to administer the water right being sought.

9. Notice Within seven days of the application receipt date, the staff shall post notice of receipt of the application on the CWCB website. The notice shall include the name of the applicant, the flow amounts claimed, the water division, the name of the stream, the proposed reach of the stream, the location of the structures including the county, and information about how to obtain party status. In addition, the staff shall notify Code of Colorado Regulations 6 the county commissioners of the county in which the RICD is (or will be) located, and any upstream counties. Moreover, the staff shall include a notice of all pending RICD applications (if any) in all items that go out to the board agenda notification list. A listing of the pending RICD cases in the Attorney General’s report shall satisfy this requirement.

10. Party Status Any person who desires party status, and who is not the applicant or who has not filed a statement of opposition to the RICD, shall become a party upon submittal of a written application for party status to the staff. The application for party status shall include the name of the entity, the mailing address of the entity, and a brief statement of the reasons why the entity is seeking party status. The application for party status must be received at the board office within thirty days after the application receipt date.

11. Staff Report The staff shall provide a written report and recommendation to the board based on the information provided by the applicant and any other applicable information.

12. Request for a Hearing The applicant, any party, or any board member may request that the board hold a public hearing regarding a RICD. Such requests must be submitted in writing to and received at the board office within forty-five days after the application receipt date.

13. Hearing Procedures If a hearing is requested pursuant to Rule 12, the director shall appoint a hearing coordinator to set the date of the hearing(s) and establish the procedures by which evidence will be offered.

a. The hearing coordinator shall, in consultation with the applicant, determine the date and location of all hearings.

b. The board shall notify the applicant and all parties of the hearing(s) at least 21 days prior to the hearing date(s).

c. Any party may present testimony or offer other evidence regarding whether the RICD should be granted, granted with conditions or denied.

d. The hearing coordinator shall set timelines and deadlines for all written submissions. Prehearing statements will be required, and shall include, but not be limited to, the following: 1) a list of all disputed factual and legal issues; 2) the position of the party regarding the factual and legal issues; 3) a list identifying all of the witnesses that will testify for the party, and a summary of the testimony that those witnesses will provide; and, 4) copies of all exhibits that the party will introduce at the hearing(s).

e. Board hearings may be recorded by a reporter or by an electronic recording device. Any party requesting a transcription of the hearing(s) shall be responsible for the cost of the transcription.

f. The hearing coordinator shall determine the order of testimony for the hearing(s), and shall decide other procedural matters related to the hearing(s). The hearing coordinator does not have authority to rule on substantive issues, which authority rests solely with the board.

g. The board may take final action at the hearing(s) or continue the hearing and/or deliberations to a date certain.

Code of Colorado Regulations 7 h. The board may permit general comments from any person who is not a party; however, the board may limit these public comments to five minutes per person.

i. The board will not apply the Colorado Rules of Evidence at hearings on RICDs. 14.

If the applicant proposes, by pleading, to amend the application that was submitted to the board then the applicant or any party may move the water court to remand the revised RICD application to the board for consideration of the amendments. If the water court remands the revised RICD application to the board, the following procedures shall apply:

a. Within 15 days of the water court’s order for remand, the applicant or any party may make a written request for the board to hold a public hearing regarding the revised RICD application.

1. i. Moving counsel should confer with counsel for other parties prior to filing such a request.
2. ii. The board has discretion whether to hold a hearing as requested by the applicant or party, or whether to review the revised RICD application on the evidence in the record.

b. Any hearing on the revised RICD application shall be held no sooner than fifteen (15) days after the request for such a hearing is received by the board, and no later than ninety (90) days after the receipt of such request.

c. If a hearing is held on the revised RICD application, any party may submit evidence regarding the difference between the revised RICD application and the application originally reviewed by the board or the effects such differences may have on the board’s findings or recommendations.

d. No person shall be granted party status to the hearing on the revised RICD application unless they were a party to the original hearing.

e. The procedures described in Rule 13, with the exception of Rule 13.c., shall apply to any hearing on a revised RICD application.

15. Submission of Findings and Recommendation to the water court Pursuant to section 37-92-102(6)(c), C.R.S., the board shall submit its findings of fact and recommendation to the water court within 90 days after the final closing date for filing statements of opposition. However, the board, for good cause shown on the record, may request that the water court grant additional time to the board for making and reporting its findings of fact and its recommendations. _________________________________________________________________________ Editor’s Notes History Code of Colorado Regulations 8