1. Title Rules Concerning Recreational In-Channel Diversions, adopted pursuant to section 37-92-102. C.R.S. (2001), 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; and 2) the Colorado Water Conservation Board when making Findings of Fact and recommendations to a water court regarding Recreational In-Channel Diversions (hereinafter referred to as “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. By this reference the Board incorporates the Basis and Purpose statement prepared and adopted at the time of the rulemaking. A copy of this document is on file at the Board office.

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. (2001). The statutory authority for these Rules is found at section 37-92-102(6)(b)(VI), C.R.S. (2001). 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. (2001), 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. (2001).

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 findings of the Board regarding the factors set out in section 37-92-102(6), C.R.S. (2001) 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. (2001), for the preservation of the natural environment to a ceasonable degree. Pursuant to section 37-92- 102(3), C.R.S. (2001) 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, of 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.

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.

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 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. (2001).

7. Required Findings The Board is required to make certain findings about RICDs. If the Board determines that the amount of water sought for a RICD does not represent the stream flow necessary to provide a reasonable recreation experience in and on the water and or that the RICD does not divert. capture, and control water in its natural course or location with physical control structures. then the Board shall note that determination in its written recommendation to the water court and specifically preserve the Board's authority to argue these issues in water court. Section 37-92-102(6)(b) C.R.S. (2001) requires the Board to make the following findings:

a. Whether the adjudication and administration of the RICD 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; and, v. Exchange opportunities within the state that may be adversely impacted by the existence of 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 recreational activity for which the RICD is sought;
2. ii. The length of and efficiency of the diversion of the proposed reach required for the intended use;
3. iii. Whether the RICD can be adequately measured and administered through the proposed reach; and, iv. Whether the RICD will affect flooding, flood control, or the one-hundred year flood elevations.

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 activity 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 determined necessary for the intended use.

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 use which is the basis for the ISF;
3. iii. Whether 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 that the ISF protects.

e. Whether the adjudication and administration of the RICD 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:

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 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 the requested amounts of water for the RICD occur; and, ix. The economic effect of the proposed RICD.

8. Additional Information Because section 37-92-102(6)(b), C.R.S. (2001) 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 location of the structures including the county, and information about how to obtain party status. In addition, the Staff shall notify the county commissioners of the county in which the RICD is (or will be) located. 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.

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 Beard 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.

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. Submission of Findings and Recommendation to the water court Pursuant to section 37-92-102(6)(c), C.R.S. (2001), 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.