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The
Instream Flow Program
&
Recreational In-Channel
Diversion Water Rights

A Guide to Recreational In-Channel Diversion Water Rights ("RICD")

Colorado's current Recreational In-Channel water rights program was initially created  after a decade of cooperative negotiation between the interests of agricultural users, state & local governments, and environmentalists. The current system has proven successful since that time.
Question:  Does current law require costly control structures to be built in order to protect recreational water uses?  

Answer:   No.  

Discussion:  The primary mechanism for protecting instream resources including recreational uses of water is through the Colorado Water Conservation Board’s (“CWCB”) instream flow program.  No control structures are necessary to obtain a decreed instream flow under the CWCB program.  The CWCB currently holds instream flows on nearly 1,700 stream segments covering more than 9,700 miles of stream and natural lake level water rights on 480 natural lakes in Colorado.  Below is a map showing the existing instream flows.  Under existing statute, parties can petition the CWCB to acquire instream flows in new reaches.  Parties can also lease or loan water to the CWCB for instream flow through the Colorado Water Trust’s “Request for Water” program authorized under C.R.S. § 37-83-105(2).  Pursuant to HB 20-1037, the CWCB can also adjudicate plans for augmentation to preserve and improve the natural environment, which allows the CWCB to utilize senior water rights to protect stream flows.
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Question:  What is the current Recreational In-Channel Diversion program, and how does it interrelate with the CWCB program?  

Discussion:  The existing RICD program is narrowly tailored to authorize a very specific type of recreational water right: manufactured white water parks.  That does not mean, however, that Colorado’s waters are unavailable to use by other sports.  As noted above, the CWCB’s instream flow program already appropriates water rights for instream flows and natural lake levels which, in turn, protects instream flows for recreational uses.  Consequently, the instream flow program already provides for diverse recreational opportunities that are not tied to any one specific use or sport.   The CWCB’s instream flow water rights  are public, not private rights, and the Colorado Supreme Court has determined that the CWCB has a fiduciary duty to the citizens of Colorado to protect instream flow resources.   Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1259 (Colo. 1995)  On the other hand, Private parties are prohibited from appropriating instream flow water rights following the Colorado Supreme Court in St. Jude’s Co. v. Roaring Fork Club, L.L.C., 351 P.3d 442 (2015) where the Court determined that a private instream flow was not a beneficial use and was “tantamount to a ‘forbidden riparian right.’”
Question:  Is it necessary to expand the existing RICD program for purposes of enhancing economic development?

Answer:  No. 

Discussion:    The economics of recreational water use are currently robust and are not reliant on expansion of the existing RICD Program.  The vast majority of recreational uses do not depend on the existence of an RICD.  Most commercial rafting trips do not rely on RICDs or manmade whitewater infrastructure.  Likewise, fishing, paddleboarding, tubing, and canoeing do not need RICDs for one to enjoy those activities.  The CWCB’s instream flow program, which protects instream flows to preserve the natural environment of streams and lakes, also protects flows for these recreational purposes.  
Question:   Is it expensive to file for an RICD?  Why does it take so long to obtain a water right? 

Discussion:    Water rights of any kind are expensive to file and lengthy to adjudicate in the State of Colorado.  Water is a very valuable resource and its value increases every year with increasing demands on a finite and variable supply.  The cost to file RICDs is no different than for any other water right.  These high costs are simply the reality of the State’s historic process where the water court weighs the interests of all interested parties and ensures that persons with senior water rights are not injured.  The length and cost of this process and the rigorous requirements placed on those who file water court applications is necessary and appropriate given the property interests involved and the value of the resource.  
Bills

What is the Instream Flow Program?

Established in 1973, the Instream flow water rights program allows for the Colorado Water Conservation Board ("CWCB") to appropriate water rights to certain stretches of streams, rivers, or lakes in an effort to maintain their historic natural environments. 

Please visit the CWCB's Instream Flow Program page for more information. 
What are Colorado's Current Instream Flow Rules?
  • Click here for the Instream Flow and Natural Lake Level Program's current rules (as of March 2021).
     
  • Click here to see the changes that were made between the 2006 and 2021 Rules.
     
  • Click here to review the CWCB's basis for the modifications to those rules.
Learn More About The Instream Flow Program
Current and Draft Legislation Concerning Instream Flows
News Articles Discussing the New Instream Flow Rules
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Collaboration

Collaboration
Legacy Water works with the following organizations in the development of its legislative initiatives:
Legacy Water works with the following organizations in the development of its legislative initiatives:
  • Central Colorado Water Conservancy District
  • Cache La Poudre Water Users Association
  • Centennial Water and Sanitation District
  • Cherokee Metropolitan District
  • City of Arvada
  • City of Fountain
  • City of Northglenn
  • City of Westminster
  • Consolidated Mutual Water Company
  • Denver Board of Water Commissioners
  • Donala Water and Sanitation District
  • Gilpin County
  • The Harmony Ditch Company
  • Hyland Hills Parks and Recreation District
  • Pawnee Well Users, Inc.
  • Pikes Peak Regional Water Authority
  • South Metro Water Supply Authority
  • Varra Companies
  • Woodmoor Water and Sanitation District
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