TC Res. No. 2005-09 OPPOSING SENATE BILL 62 AS AN ATTACK ON LOCALTOWN OF AVON, COLORADO
RESOLUTION NO. 05-09
Series of 2005
A RESOLUTION OPPOSING SENATE BILL 62 AS AN ATTACK ON LOCAL
CONTROL VIA RECREATIONAL IN-CHANNEL DIVERSION WATER RIGHTS TO
THE DETRIMENT OF OUR LOCAL ECONOMY'S RECREATION AND TOURISM
INDUSTRY
WHEREAS, Recreational In-Channel Diversions (RICD) water rights are provided for in
Colorado law and are widely accepted as a beneficial non-consumptive water use of growing
importance to Colorado's critical tourism and recreation industries; and
WHEREAS, RICD's represent a new, clean use of water that generates important revenue
without consuming a single drop of water; and
WHEREAS, Senate Bill 62 constitutes a direct attack on local control, on our community's
recreation and tourism based industries and our ability to develop future recreation based tourism
industries and relegates recreational water uses to second class status by effectively eliminating
future and existing RICD's; and
WHEREAS, Senate Bill 62 was introduced by State Senator Jack Taylor, who represents the
Town of Avon and other tourism and recreation dependent municipalities and who has otherwise
been a champion of Colorado's vital tourism and recreation industry.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby expresses its vigorous opposition to
SB62 and urges Senator Jack Taylor to immediately withdraw this dangerous, discriminatory and
unnecessary legislation and alternately urges all other senators & representatives to oppose this
legislation.
Adopted This 22nd Day Of February 2005.
To f Avon, Colo ado
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S E A 1, = Ronald, C. Wolfe, Mayo
ATTTEST::~(~
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First Regular Session
Sixty-fifth General Assembly
STATE OF COLORADO
PREAMENDED
This Unofficial Version Includes Committee
Amendments Not Yet Adopted on Second Reading
LLS NO. 05-0445.01 Karen Woods SENATE BILL 05-062
SENATE SPONSORSHIP
Taylor,
HOUSE SPONSORSHIP
(None),
Senate Committees House Committees
Agriculture, Natural Resources & Energy
A BILL FOR AN ACT
101 CONCERNING ADDITIONAL REQUIREMENTS APPLICABLE TO THE
102 ADJUDICATION OF A RECREATIONAL IN-CHANNEL DIVERSION.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
Requires the Colorado water conservation board to make written
findings on an application for a recreational in-channel diversion
concerning whether the recreational in-channel diversion will affect
future upstream water storage and water development projects.
Adds "control structure" to the definition of "diversion" and
further defines "control structure".
Defines "recreational in-channel use" to mean kayaking, but not
inner tubing, swimming, fishing, boating, rafting, or other water-related
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute.
i
recreational uses.
Be it enacted by the General Assembly of the State of Colorado:
2 SECTION 1. 37-92-103 (4), (7), and (10.3), Colorado Revised
3 Statutes,,are amended, and the said 37-92-103 is further amended BY
4 THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to
5 read:
6 37-92-103. Definitions. As used in this article, unless the context
7 otherwise requires:
8 4) "Beneficial use" is the use of.that amount of water that is
9 reasonable and appropriate under reasonably efficient practices to
10 . accomplish without waste the purpose for which the appropriation is
11 lawfully made and, without limiting the generality of the foregoing,
12 includes-the impoundment of water for recreational purposes, including
13 fisherv or wildlife, and also includes the diversion of water by a coun
14 municipality, city and county, water district, water and sanitation district,
15 water conservation district, or water conservancy district for recreational
16 in-channel diversion pMoses. For the benefit and enjoyment of present
17 and future generations, "beneficial use" shall also include the
18 a propriation by the state of Colorado in the manner prescribed by law
19 of such minimum flows between specific points or levels for and on
20 natural streams and lakes as are required to preserve the natural
21 environment to a reasonable degree. WATER`-DIVERTED FOR A
22 RECREATIONAL IN-CHANNEL DIVERSION IN EXCESS OF THREE HUNDRED
23 FIFTY CUBIC FEET PER SECOND SHALL CONCLUSIVELY BE DEEMED TO BE
24 WASTED, AND NOT PLACED TO BENEFICIAL USE;' EXCEPT THAT SUCH
25 LIMITATION SHALL NOT APPLY TO THE ADMINISTRATION OF A WATER RIGHT
-2-
062
1 FOR RECREATIONAL IN-CHANNEL DIVERSION PURPOSES WHOSE
2 APPLICATION WAS FILED PRIOR TO FEBRUARY 17, 2005, UNLESS A CHANGE
3 TO SUCH WATER RIGHT IS THEREAFTER APPLIED FOR AND DECREED.
4 (6.3) "CONTROL STRUCTURE" MEANS A STRUCTURE CONSISTING OF
5 FEATURES CONSTRUCTED BY HUMANS THAT INCLUDES SIDES AND A
6 BOTTOM, AND IS USED TO CONTROL WATER IN ITS NATURAL COURSE OR
7 LOCATION FOR RECREATIONAL IN-CHANNEL DIVERSIONS. AN OWNER OF
8 A- RECREATIONAL IN-CHANNEL DIVERSION MAY PLACE A CALL ON THE
9 RIVER ONLY IF THE CONTROL STRUCTURE IS ABLE TO PHYSICALLY
10 CONTROL THE QUANTITY OF WATER SUBJECT TO THE CALL AT THE
I LOCATION OF SUCH CONTROL STRUCTURE. CONCENTRATION OF RIVER
12 FLOW BY A CONTROL STRUCTURE MEETING THIS DEFINMON CONSTITUTES
13 CONTROL OF WATER FOR A RECREATIONAL IN-CHANNEL DIVERSION.
14 7) "Diversion" or "divert" means removing water from its natural
15 course or location, or controlling water in its natuial course or location,
16 'by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit,
17 well, pump, or other structure or device, except that only a county,
18 municipality, city and county, water district, water and sanitation district,
19 water conservation district, or water conservancy district may control
20 water, WITH THE USE OF A CONTROL STRUCTURE, in its natural course or
21 location for recreational in-channel diversions. This does not apply to
22 applications filed prior to January 1, 2001.
23 10.2) "RECREATIONAL IN-CHANNEL DIVERSION" MEANS THE
24 MINIMUM STREAM FLOW AS IT IS DIVERTED, CAPTURED, CONTROLLED, AND
25 PLACED TO BENEFICIAL USE BETWEEN SPECIFIC POINTS DEFINED BY
26 PHYSICAL CONTROL STRUCTURESPURSUANT TO AN APPLICATION FILED BY
27 A COUNTY, MUNICIPALITY, CITY AND COUNTY, WATER DISTRICT, WATER
-3- 062
1 AND SANITATION DISTRICT, WATER CONSERVATION DISTRICT, OR WATER
2 CONSERVANCY DISTRICT FOR RECREATIONAL IN-CHANNEL USE IN AND ON
3 THE WATER.
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10 in and on the wate.. "RECREATIONAL IN-CHANNEL USE"
11 MEANS KAYAKING, CANOEING, INNER TUBING, BOATING, AND RAFTING.
12 SECTION 3. Applicability. This act shall apply to water right
13 applications which are filed on or after February 17, 2005. It shall not
14 apply to diligence applications or applications to make absolute
15 conditional water rights for a recreational in-channel diversion whose
16 original application was filed prior to February 17: 2005.
17 SECTION 4. Safety clause. The general asseinbly hereby finds.
18 determines, and declares that this act is n6cessarv for the immediate
19 preservation of the public peace, health, and safety.
-4- 062
i
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Norman Wood, Town Engineer
Date: February 4, 2005
Re: Senate Bill 05-062 / Concerning Additional Requirements Applicable to the
Adjudication of a Recreational In-Channel Diversion (RICD)
Resolution No. 05-09, Series of 2005 - A Resolution Opposing SB-62
Summary: Senator Taylor has introduced the attached Senate Bill 05-062 to the Sixty-
fifth General Assembly of the State of Colorado. This Bill appears to be a direct assault on
• water rights adjudicated for Recreational In-Channel Diversion (RICD) and consequently an
attack on the State's in stream based recreation industry. The Bill would accomplish this by:
1. The bill effectively subordinates recreational water use to all "future upstream water
storage and water development projects." A water right that can't call for water from
junior upstream rights is not a water right.
2. The bill defines RICD as, "Means kayaking, but not inner tubing, swimming, fishing,
boating, rafting, or other water-related recreational uses."
3. The bill discriminates against recreation by imposing different and much more
stringent tests for diversion ("control structure" definition) and waste (ten Kayak
requirement) than apply to other water rights:
a. RICD's must already comply with existing law that requires "control"
sufficient to use the water for the intended use. This bill seeks to impose
unique "control" requirements tailored for irrigation ditch or canal diversions.
b. This bill requires that at least ten kayakers must be in the water immediately
below the control structure for kayaking purposes for the owner of the RICD
right to make and continue a call on the river. This means that the ten
kayakers would sit in a "dry streambed" for the hours or days that would be
required for the call on the upstream water rights to be implemented and the
water to actually arrive at the site.
•
l:\Engineering\Water\Comespondence\Memo-RICD.Doc
The attached Resolution has been drafted for Town Council's consideration if it is the
Council's desire to express their concern regarding this particular legislation and to request
that Senator Taylor reconsider his support for this document and withdraw it from
consideration.
A copy of a Resolution unanimously approved by the Colorado Association of Ski Towns at
their January 28, 2005 meeting is also attached.
Town Manager Comments:
01,
1:\Engineering\Water\Correspondence\Memo-RICD.Docs Page 2
TOWN OF AVON, COLORADO
RESOLUTION NO. 05-09
Series of 2005
~oca,(
A RESOLUTION OPPOSING SENATE BILL 62 AS AN ATTACK ON
RECREATIONAL IN-CHANNEL DIVERSION WATER RIGHTS TO THE
DETRIMENT OF THE STATE'S RECREATION AND TOURISM INDUSTRY
Cart-cZ
a A (oCdL e-C
WHEREAS, Recreational In-Channel Diversions (RICD ater rights are provided for in
Colorado law and are widely_ accepted as a beneficial non-consumptive water use of growing
importance to Colorado's critical tourism and recreation industries; and
WHEREAS, RICD's represent a new, clean use of water that generates important revenue
without consuming a single drop of water; and L~aQ¢ Fra~ CNAA/\--
WHEREAS, Senate Bill 62 constitutes a direct attack on the State s recrea ion anted _ t~ou~i-ism
based industries and relegates-Tec-rgat' o-secar -cl--axs- ectively
eliraiuating-1'uture_.and.existin__g R itn'o- u d _n A-D
1-1 010%
9OLL
WHEREAS, Senate Bill 62 was introduced by State Senator Jack Taylor, who represents the
Town of Avon and other tourism and recreation dependent municipalities and who has otherwise
been a champion of Colorado's vital tourism and recreation industry.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby expresses its vigorous opposition to
SB62 and urges Senator Jack Taylor to immediately withdraw this dangerous, discriminatory and
unnecessary legislation. ot 111L%C/0 dkk dbl~
4
ADOPTED THIS DAY OF February 2005.-~ 6v\-
Town of Avon, Colorado
Ronald C. Wolfe, Mayor
ATTEST:
Patty McKenny, Town Clerk
3)
1) -Aud JUWbR-~ 4V~-4tavl
First Regular Session
Sixty-fifth General Assembly
• STATE OF COLORADO
INTRODUCED
LLS NO. 05-0445.01 Karen Woods SENATE BILL 05-062
SENATE SPONSORSHIP
Taylor,
(None),
HOUSE SPONSORSHIP
Senate Committees House Committees
Agriculture, Natural Resources & Energy
•
A BILL FOR AN ACT
101 CONCERNING ADDITIONAL REQUIREMENTS APPLICABLE TO THE
102. ADJUDICATION OF A RECREATIONAL IN-CHANNEL DIVERSION.
Bill Summary
(Note: This summary applies to this bill as introduced and does
not necessarily reflect any amendments that may be subsequently
adopted.)
Requires the Colorado water conservation board to make written
findings on an application for a recreational in-channel diversion
concerning whether the recreational in-channel diversion will affect
future upstream water storage and water development projects.
Adds "control structure" to the definition of "diversion" and
further defines "control structure".
Defines "recreational in-channel use" to mean kayaking, but not
inner tubing, swimming, fishing, boating, rafting, or other water-related
•
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute.
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recreational uses.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. 37-92-102 (6) (b), Colorado Revised Statutes, is
amended BY THE ADDITION OF ANEW SUBPARAGRAPH to read:
37-92-102. Legislative declaration - basic tenets of Colorado
water law. (6) (b) In determining whether the board shall recommend
that the water court grant, grant with conditions, or deny such application,
the board shall consider the following factors and make written findings
thereon:
(V.5) WHETHER ADJUDICATION AND ADMINISTRATION OF THE
RECREATIONAL IN-CHANNEL DIVERSION WOULD AFFECT DEVELOPMENT OF
FUTURE UPSTREAM WATER STORAGE AND WATER DEVELOPMENT PROJECTS;
AND 0
SECTION 2. 37-92-103 (4), (7), and (10.3), Colorado Revised
Statutes, are amended, and the said 37-92-103 is further amended BY
THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to
read:
37-92-103. Definitions. As used in this article, unless the context
otherwise requires:
(4) "Beneficial use" is the use of that amount of water that is
reasonable and appropriate under reasonably efficient practices to
accomplish without waste the purpose for which the appropriation is
lawfully made and, without limiting the generality of the foregoing,
includes the impoundment of water for recreational purposes, including
fishery or wildlife, and also includes the diversion of water by.a county,
municipality, city and county, water district, water and sanitation district, •
-2-
SB05-062
if
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water conservation district, or water conservancy district for recreational
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in-channel diversion purposes. For the benefit and enjoyment of present
3
and future generations, "beneficial use" shall also include the
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appropriation by the state of Colorado in the manner prescribed by law
5
of such minimum flows between specific points or levels for and on
6
natural streams and lakes as are required to preserve the natural
7
environment to a reasonable degree. WATER DIVERTED FOR A
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RECREATIONAL IN-CHANNEL DIVERSION SHALL BE DEEMED TO BE WASTED,
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AND NOT PLACED TO BENEFICIAL USE, UNLESS AT THE TIME OF THE
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DIVERSION AT LEAST TEN KAYAKERS ARE USING THE WATER DIVERTED AT
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OR IMMEDIATELY BELOW THE CONTROL STRUCTURES FOR KAYAKING
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PURPOSES, AND SUCH MINIMUM LEVEL OF KAYAKING USE SHALL BE
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REQUIRED FOR THE OWNER OF A RECREATIONAL IN-CHANNEL DIVERSION
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AKE AND CONTINUE TO MAKE A CALL ON THE RIVER
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TO M
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(6.3) "CONTROL STRUCTURE" MEANS A STRUCTURE USED TO
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CONTROL WATER IN ITS NATURAL COURSE OR LOCATION FOR
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RECREATIONAL IN-CHANNEL DIVERSIONS. AN OWNEROFA RECREATIONAL
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IN-CHANNEL DIVERSION MAY PLACE A CALL ON THE RIVER ONLY IF THE
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CONTROL STRUCTURE IS ABLE TO PHYSICALLY CONTROL ONE HUNDRED
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PERCENT OF THE QUANTITY OF WATER AT THE LOCATION OF SUCH CONTROL
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STRUCTURE. CONCENTRATION OF RIVER FLOW BY A STRUCTURE DOES NOT,
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BY ITSELF, CONSTITUTE CONTROL OF WATER FOR A RECREATIONAL
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IN-CHANNEL DIVERSION.
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(7) "Diversion" or "divert" means removing water from its natural
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course or location, or controlling water in its natural course or location,
26
by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit,
27
well, pump, or other structure or device; except that only a county,
-3- SB05-062
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municipality, city and county, water district, water and sanitation district, •
water conservation district, or water conservancy district may control
water, WITH THE USE OF A CONTROL STRUCTURE, in its natural course or
location for recreational in-channel diversions. This does not apply to
applications filed prior to January 1, 2001.
(10.2) "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 COUNTY, MUNICIPALITY, CITY AND COUNTY, WATER DISTRICT, WATER
AND SANITATION DISTRICT, WATER CONSERVATION DISTRICT, OR WATER
CONSERVANCY DISTRICT FOR RECREATIONAL IN-CHANNEL USE IN AND ON
THE WATER.
(10.3) in-channel "Reereationai sttearn flow as it is diverted, captured, eontrolled, and pineed to beneficiM
use between speeific points defined by physieal eontrol structures
County, wate, district, watex and sanitation distriet, water eonservation
. - in and on the water. "RECREATIONAL IN-CHANNEL USE"
MEANS KAYAKING, BUT NOT INNER TUBING, SWIMMING, FISHING, BOATING,
RAFTING, OR OTHER WATER-RELATED RECREATIONAL USES.
SECTION 3. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, and safety.
•
-4-
SB05-062
t
• Colorado Association of Ski Towns
Resolution
2005
Whereas, Recreational In-Channel Diversion (RICD) water rights are provided for in
Colorado law and are widely accepted as a beneficial non-consumptive water use
of growing importance to Colorado's critical tourism and recreation industries;
and;
Whereas, RICD's represent a new, clean use of water that generates important revenue
without consuming a single drop of water; and
Whereas, SB 62, if passed, would constitute a direct attack on the State's recreation and
tourism based industries and relegate recreational water uses to second-class
status by effectively eliminating future and existing RICD's; and
Whereas, SB 62 has been introduced by State Senator Jack Taylor, who represents many
tourism and recreation dependent municipalities and who has otherwise been a
champion of Colorado's vital tourism industry;
Now Therefore Be It Resolved that the Colorado Association of Ski Towns, meeting in Winter
• Park, Colorado this 28` day of January, 2005, expresses its vigorous opposition to SB62 and
urges Senator Jack Taylor to immediately withdraw this discriminatory, dangerous and
completely unnecessary legislation.
Adopted unanimously on January 28, 2005 by all municipalities in attendance: Aspen, Avon,
Breckenridge, Frisco, Fraser, Glenwood Springs, Granby, Grand Lake, Mt. Crested Butte,
Silverthorne, Snowmass Village, Steamboat Springs, Vail, Winter Park.
COLORADO ASSOCIATION OF SKI TOWNS
Paul Strong, President
ATTEST:
C