State Sen. Jack Taylor has amended a bill on recreational in-channel diversion rights, adding a cap on the amount of water such diversions can request but exempting existing applicants from having to meet that cap.
The amended bill states that "water diverted in a RICD in excess of 350 (cubic feet per second) would conclusively be deemed to be wasted." However, the new bill also states the cap would "not apply to any RICD right which has already been decreed or for which application was filed prior to 2005."
The latter amendment means the cap would not affect the city of Steamboat Springs' application for a RICD on the Yampa River. The city applied for a RICD in December 2003, requesting a maximum of 1,700 cfs in June, the peak of kayak season.
Recreational in-channel diversions were authorized under state Senate legislation in 2001. The diversions are a water right allowing municipalities and other entities to request a certain amount of streamflow on a waterway to support recreational activities such as kayaking.
Taylor, R-Steamboat Springs, said his bill is an attempt to clarify and define aspects of the authoring legislation, Senate Bill 216. He said it is the Legislature's job -- not the courts' -- to amend Colorado water law.
Other changes to Taylor's bill include:
n Elimination of the requirement that 10 kayakers be present on the river before a call for water under a RICD can be made.
n A requirement that all RICDs be able to physically control the water requested with a manmade structure that includes sides and a bottom. Previously, the bill had required the RICD holder to be able to effectively dam the waterway.
n A requirement that the Colorado Water Conservation Board consider effects on upstream water storage and development when reviewing RICD proposals.
n And a definition of recreational use to include kayaking, canoeing, tubing, boating and rafting. Previously, the bill had limited recreational use to kayaking.
Taylor's bill is expected to be introduced Thursday in the Senate Agriculture, Natural Resources and Energy Committee. The bill has drawn a strong reaction from the Steamboat Springs City Council, which has authorized spending $10,000 on lobbyists to defeat it.
Taylor said accusations that the bill is aimed at Steamboat Springs' RICD are off base. He said that the legislation has been discussed for at least two years and that a number of lawmakers were prepared to sponsor the legislation.
"This is not a knee-jerk, shoot-from-the-hip bill where I am after the city of Steamboat Springs," Taylor said. "We are not picking on Steamboat or any other recreational user. In fact, I believe we are helping them."
Taylor said his motivation is to protect Colorado's water laws and water rights. He said Steamboat's RICD application is merely one of several filed across the state. He said the proliferation of such RICDs pose a long-term threat to Colorado's water supply if restrictions are not put in place.
"If we don't define this and put some parameters around these RICDs, then you are going to get these things all up and down the river, and they will trump each other," Taylor said. "That's going to create gridlock, and the only winner will be the downstream states."
Taylor said part of the problem with many RICDs is that too much water is being requested. He said testimony by kayakers before the Colorado Water Conservation Board showed that 350 cfs is more than adequate for kayaking. "They have held national competitions with less streamflow," Taylor said.
Paul Strong, president of the Steamboat Springs City Council, said 350 cfs would not be enough for Steamboat's kayak holes. He said operating at 350 cfs is equivalent to removing all of the runs on Mount Werner with the exception of Preview and Southface.
"Our kayak holes were designed for huge flows, much more than 350 cfs," Strong said. "If you talk to kayakers, they'll tell you that 350 cfs is a bunny slope."
Strong said he appreciates that Taylor excluded Steamboat and other previously filed RICDs from the 350 cfs requirement but that the city remains opposed to the bill. He said the control structure still isn't reasonable.
Kayak holes are made by altering the river bottom and placing boulders strategically to create unique streamflows. There are no manmade structures involved. Supporters of Taylor's bill "want a spillway constructed, which would effectively eliminate kayak parks," Strong said.
But Taylor said it's possible -- even likely -- that Steamboat's kayak holes already meet the new definition of control.
Taylor said a control structure requirement holds RICDs to the same standard all other water rights holders must meet. "My goal is to protect Colorado water law and water rights," Taylor said, "which have worked very successfully for well over 100 years."
Taylor warned that the creation of numerous RICDs on the state's waterways could negatively affect agriculture, decrease the state's ability to store and preserve water and ultimately benefit downstream states more than anyone else. He said his bill is in line with the Colorado Water Conservation Board's mission of conserving, developing, protecting and managing Colorado's water for present and future generations.
Taylor said Steamboat attorney and water expert Tom Sharp assisted in the writing of the bill at Taylor's invitation. He said that he asked Steamboat Springs City Manager Paul Hughes to put Sharp on the agenda to discuss technical issues involved with RICDs and that Hughes refused. Taylor thinks that was inappropriate.
"Any citizen has the right to appear before City Council on an issue," Taylor said. Not allowing Sharp to appear "is a violation of sunshine laws."
Hughes said he invited Taylor to meet with the City Council to discuss his bill. He said Sharp, a member of the Colorado Water Conservation Board and director of the Upper Yampa Conservancy District, has met with the council before and made his opposition to the city's RICD application clear.
"We wanted Jack on the agenda," Hughes said. "We would not take his substitute of Tom Sharp."
The Water Conservation Board, the Upper Yampa Conservancy District and upstream communities have challenged the city of Steamboat's RICD application. The case is scheduled to be heard in August in District Court.