Current through Register Vol. 47, No. 17, September 10, 2024
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:
i. The amount and location of remaining
unappropriated compact entitlement waters in the basin in question and at the
RICD point of diversion;
ii. The
proximity of the RICD to the state line;
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;
iv. The existence of suitable downstream
points of diversion or storage for consumptive beneficial uses before the water
leaves the state;
v. Exchange
opportunities within the state that may be adversely impacted by the existence
of the RICD;
vi. Whether the basin
is over-appropriated;
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;
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:
i. The nature of the identified
reasonable recreational experience for which the RICD is sought;
ii. The length of the proposed RICD
reach;
iii. Whether the RICD can be
adequately measured and administered through the proposed reach;
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;
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;
vi. The environmental effects of the proposed
RICD;
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:
i. The nature and extent of the access
required for the identified reasonable recreation experience for which a RICD
is being sought;
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:
i. The nature and extent of
the ISF in the proposed reach or any affected downstream reach;
ii. The timing and duration of the RICD as
such may relate to the specific natural environment for which the ISF was
decreed;
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:
i. Whether there are any probable future
upstream junior appropriations for direct diversion or storage;
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;
iii.
Whether existing federal policies, regulations and laws affect or will be
affected by the RICD;
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;
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;
vi. Whether the application has appropriate
limitations upon the time of day, days per month, or seasons during which the
RICD would be exercised;
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;
ix. The economic effects of the proposed
RICD;
x. The environmental effects
of the proposed RICD;
xi. The
relationship of the requested RICD flow rates to the historic appropriated and
unappropriated flow rates for each time period requested;
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);
xiv. Whether the RICD would conserve and
efficiently use the available stream flow, thereby promoting maximum
utilization of Colorado's water resources;
xv. Whether the RICD will make the river
basin water critical and describe the resulting impact on existing water rights
and users;
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;
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,
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.
