DISTRICT COURT, WATER DIVISION NO. 1, STATE OF COLORADO   901 9th Avenue, Room 418 Greeley, CO  80631	• COURT USE ONLY  •
CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE CITY OF GOLDEN   IN JEFFERSON COUNTY, COLORADO
	Case Number: 98CW448   Water Division: 1
DECREE

 

            The above-captioned application was filed with the Water Court on December 30, 1998, and referred to the Water Referee for Water Division No. 1, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969.  The matter was then rereferred to the Water Judge by Order dated July 20, 2000.

 

            The Court, having made such investigations as are necessary to determine whether or not the statements in the application are true, and having become fully advised with respect to the subject matter of the application, does hereby make the following findings of fact, conclusions of law, and ruling and decree in this matter.

 

            FINDINGS OF FACT

 

A.        Application.  The above-captioned application was filed in this Court on December 30, 1998.  The Applicant is the City of Golden, a Colorado municipal corporation (“Golden”), with the following address: c/o Director of Public Works, 911 10th Street, Golden, CO 80401.  The Court finds that the application is complete and covers all matters required by law.

 

B.         Objectors.  Timely statements of opposition were filed by the City of Arvada, City of Westminster, Town of Idaho Springs, Town of Georgetown, Board of County Commissioners of Clear Creek County, Clear Creek Skiing Company, Coors Brewing Company and the Colorado Water Conservation Board (“CWCB”).  The City of Arvada, Town of Idaho Springs, and Coors Brewing Company subsequently withdrew their statements of opposition.  The State Engineer and Division Engineer for Water Division No. 1 (the “Engineers”) filed a Motion to Intervene dated September 22, 2000, which was granted by Order dated January 3, 2001.  The time for filing additional statements of opposition has expired.

 

C.        Stipulations.  Separate stipulations have been entered into between Golden and the City of Westminster, Town of Georgetown, Clear Creek Skiing Company and the County of Clear Creek.  The Objectors entering into said stipulations have consented to entry of this Decree.  The foregoing stipulations are hereby approved.  The only remaining Objectors who have neither withdrawn their opposition or entered into a stipulation in this case are the CWCB and the Engineers (collectively, the “State”).

 

D.         Summary of Application.  Golden designed and constructed 7 dam structures and flow deflector control devices with boat chutes on Clear Creek which form the City of Golden White Water Course. ^[1]   Although Golden seeks water rights for each of the 7 structures, these separate structures are collectively referred to herein as the City of Golden White Water Course (or the “Course”) for ease of reference.  These structures were designed to control and concentrate the flow of Clear Creek in order to serve the beneficial uses described herein, including the formation of a white water course for recreational use by kayaks, rafts  and other boats.  Golden seeks absolute water rights for each of the structures which constitute this Course based upon the amount of water controlled and applied to beneficial use by these structures.  Golden seeks additional conditional water rights for these structures during May and July to achieve the optimum flows for which the Course was designed.  Golden also intends to extend the length of the City of Golden White Water Course by constructing approximately 10 additional dam structures and water deflector control devices with boat chutes designed to concentrate and control the flows of Clear Creek for the beneficial uses claimed herein.  Golden seeks conditional water rights for the additional structures.  Although conditional water rights are sought for each of these additional structures, they are collectively referred to herein as the City of Golden White Water Course (Extension) (or the “Extension”) for ease of reference.

 

E.         Findings for the City of Golden White Water Course.

 

1.         Name of Structures:  The Course consists of 7 separate dam structures and water deflector control devices with boat chutes that concentrate and control the flows of Clear Creek for the beneficial uses claimed herein.

 

2.         Legal Description.  The Course is located within the modified channel of Clear Creek in the NW1/4 of the NE1/4 of Section 33, T. 3 S., R. 70 W. of the 6th P.M., Jefferson County, Colorado.  The Course begins at a previously existing rock deflector device followed by 7 dam structures of various types, each of which controls, concentrates and directs the stream flow for the beneficial uses described below.  The locations of the 7 structures which constitute the Course are as follows:

 

A)       Structure 1.  A dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 82E56'9" W., a distance of approximately 2790 feet.

 

B)       Structure 2.  A deflector dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 84E37'37" W., a distance of approximately 2843 feet.

 

C)       Structure 3.  A deflector dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 85E38'33" W., a distance of approximately 2888 feet.

 

D)       Structure 4.  A deflector dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 85E59'33" W., a distance of approximately 2954 feet.

 

E)        Structure 5.  A dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 87E25'56" W., a distance of approximately 3000 feet.

 

F)        Structure 6.  A dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 88E44'21" W., a distance of approximately 3245 feet.

 

G)       Structure 7.  A dam located at a point within the channel of Clear Creek where the NW corner of Section 33, T. 3 S., R. 70 W. bears N. 88E25'32" W., a distance of approximately 3546 feet.

 

3.         Source.  The source for the Course is Clear Creek, a tributary of the South Platte River.

 

4.         Date of Initiation of Appropriation: December 30, 1998.  The appropriation was initiated before this date by formation of the requisite intent to appropriate for beneficial use coupled with actions manifesting such an intent sufficient to put third parties on notice.  Actions included, but are not limited to, the Golden City Council’s approval of the Course, appropriation of money for construction of the Course, the passage of a City Council resolution authorizing the appropriation of the necessary water rights, posting notice of Golden’s intent to appropriate water for the Course, and the actual construction of the Course.

 

5.         Intent to Appropriate.  The court finds that Golden possessed the requisite intent to appropriate water for the amounts and time periods shown in Tables 1 and 2, below.

 

6.          Absolute and Conditional Amounts.  Golden is entitled to an absolute decree for those flow rates that have been put to beneficial use, i.e., actually used to date by boaters running the Course. The absolute water rights claimed by Golden in the application were based, inter alia, upon measured flows [2] at the Clear Creek Gage when the course was in use by boaters. [3]  

In many months, there was insufficient evidence of gage flows during use.  The court finds that in such instances, average monthly flows for the 26-year period 1974-1999 [4] provide a reasonable estimate of the stream stages anticipated and actually used by boaters. Where the evidence has tied a given use to a contemporaneous flow rate, the court concludes that the maximum such coincidence of use and flow rate, in a given month, establishes flow rate for that month for which Golden is entitled to an absolute decree.

The court also distinguishes between day and night use, inasmuch as there is a substantial difference in density of use before and after dark.  In addition, Golden’s plan to encourage night use by installing lights to illuminate the stream is still in the planning stage.  The court has chosen 6:00 p.m. and 6:00 a.m. as a year-round average demarcation between light and dark, recognizing that seasonal differences are substantial.  Golden may yet, during the diligence period, establish actual use-flow rate data to justify a decree for recreational rights throughout all or part of a twenty-four hour period.  However, perfection of nighttime rights must be established from uses that occur between one-hour after sundown and one hour before sunrise. Tying decreed flow rates to actual diurnal and monthly use will limit Golden’s appropriation to that amount of water actually put to beneficial use at given points in time.

                                    Tables 1 and 2 show the respective decreed rates for day and night use.

The first row of each table lists the total monthly flow rates, in cubic feet per second (cfs), that Golden seeks.  The second row lists the flow rates that were appropriated and applied to beneficial use by Golden, for the months given, and which the court is now decreeing to be absolute.  The third row lists the difference in flow rates between row 1 and row 2, and which the court now decrees to be conditional. As is apparent from Table 2, the court has insufficient data to decree night uses to be absolute.

 

 

 

Table 1

6 a.m.-6 p.m.		Jan		Feb		Mar		Apr		May		Jun		Jul		Aug		Sep		Oct		Nov		Dec
	Claimed cfs		70		70		70		255		1000		1000		000		559		251		143		103		70
Absolute cfs		43		42		45		166		325		840		562		157		129		85		62		49
Conditional cfs		27		28		25		89		675		160		438		402		122		58		41		21

 

Table 2

	6 p.m.-6 a.m.		Jan		Feb		Mar		Apr		May		Jun		Jul	Aug	Sep	Oct			Nov	Dec
	Claimed cfs	70			70		70	255			1000	1000			1000	559	251	143		103		70
Absolute		0		0		0		0		0		0		0		0	0		0	0			0
	Conditional cfs	70			70		70	255			1000	1000			1000	559	251	143		103		70

 

            The above conditional water rights are based on the unrebutted testimony regarding use of the Course offered by Dan Hartman (Golden’s Director of Public Works) and Gary Lacy (the designer and a frequent user of the Course), and the survey taken by the State’s expert witness, Dr. Shelby.  It is also based upon measured flows at the USGS gage, Clear Creek at Golden, Colorado (the “Clear Creek Gage”) in 1998, 1999, and 2000.  After the application was filed, a portion of the conditional water rights claimed in the application for June and July were perfected as measured by the Clear Creek Gage in 1999.  The Court further notes the State’s admission that an absolute appropriation can be based on an instantaneous peak flow.  However, the burden is upon the Applicant to establish the maximum flow rates that have been actually used by boaters to obtain an absolute decree. 

 

7.         Diversion and Control: The design capacity of the Course is 1,000 cfs and the Course was constructed to that design capacity based on the directions from the Golden City Council. The 1,000 cfs flow rate was used by the Course designer weir formulas and other calculations for the structures in the Course.  At that flow rate, diversion structures 2-7 do not overtop.  All of the structures function at the optimal level to concentrate and control the flow of water, to create waves and jets of water, self-scouring pools, hydraulic holes, large changes in current direction, and other white-water features that are used by kayakers and other boaters for recreational purposes.  In addition, while over-topping directly affects the above features and begins to camouflage them, initially it does not destroy the features.  The flow rate, above which the Course’s structures are inundated to the point that they no longer create detectable white-water features, has not been established; hence, the 1000 cfs sought by Golden is reasonable in light of its intended use.

The Course structures can also divert and control water at the claimed monthly flows that are less than 1000 cfs.  Minimum control occurs at 20 cfs, and white water features begin to develop at 200 cfs.

            In view of the foregoing, the Court finds that the structures in the Course control, concentrate and direct the flow of water through the Course in a manner that constitutes a diversion under C.R.S. § 37-92-103(7). City of Thornton v. City of Fort Collins, 830 P.2d 915, 930 (Colo. 1992) (“controlling water within its natural course . . . by some structure or device for a beneficial use thus may result in a valid appropriation.”)  

            Accordingly, the Court finds that the seven Course structures have diverted and controlled water flows for the claimed absolute amounts as identified in the monthly chart in Tables 1 and 2, above.

 

8.         Beneficial Use: As detailed above, water in the amounts claimed absolute for the Course right have been beneficially used for recreational boating purposes.  § 37-92-103(4).  Moreover, the City of Golden derives substantial economic benefit from the recreational use of the Course.  This benefit has been an important factor in the economic redevelopment of the Golden downtown area.

           The Court further finds that this beneficial use at the conditional amount claimed is reasonable and there is no waste as the higher the flows, the greater the Course usage, and attendant economic benefit.  The testimony was unrebutted that when flows are at the 1000 cfs level, the Course is accessible to intermediate, advanced-intermediate, expert, and even world-class boaters.  Intermediates use easier parts of the Course, while more experienced boaters utilize more challenging structures in the Course.

           Testimony demonstrated that flows of 1,000 cfs and higher are also best for the elite competitions such as the Eddie Bauer Classic and the U.S. Olympic trials that Golden and others have held and plan to continue to hold on the Course. The Court concludes that Golden derives substantial economic benefit from competitions held on the Course.  Not only is the Course used and enjoyed by the competitors and spectators, but both the competitors and spectators spend many thousands of dollars in Golden on days when events are held.  While events that have been planned months in advance are still held on the Course if flows are less than 1,000 cfs on event day, Golden’s ability to continue to attract such competitions depends on the possible availability of high flows in the 1,000 cfs range.

           In addition, the Court finds that the Golden Course is perceived by many boaters as the best in the area.  That reputation translates directly into economic value for the City in that it attracts boaters from across the State, the Country, and even international competitors.  The Court finds that the reputation of the Course is in large part due to the high flows.

           The Court concludes that high flow rates are a critical component of the Course as an attraction and amenity for Golden.  For all of the foregoing reasons, the Court concludes that flows of up to 1,000 cfs can and will be put to beneficial use and not wasted.  The Court recognizes that Golden claimed amounts of water less than 1,000 cfs in some months of the year as identified in the monthly chart in Tables 1 and 2, above.  The testimony also demonstrated that the water diverted and controlled by the Course at these lower flows is also beneficially used for recreational purposes.  Therefore, the Court further finds that all amounts less than 1,000 cfs are also put to beneficial use and are not wasted.

 

9.         Reasonableness:  The Court concludes that the amount of water claimed by Golden is reasonable to serve Golden’s purposes in making the appropriation.  “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.”  C.R.S. § 37-92-103(4).  The question, therefore, is not whether the amount of water claimed is “reasonable” in the abstract, or as compared to other potential future uses of the water, but whether the amount claimed is reasonable for the purposes for which Golden made the appropriation.  When tested against Golden’s purposes explained in Paragraph 8 above, the Court concludes that the 1,000 cfs claimed by Golden in May, June and July, and the lesser amounts claimed in the other months of the year, are reasonable.

           Although not required to consider other potential uses of water in quantifying a water right under the beneficial use statute, the Court notes that the rights at issue are non-consumptive, and the water claimed is always available for all downstream uses. In a dry water year, 100% of the water claimed for the Course is already subject to a downstream senior call.   In an average water year, approximately 84% of the water that passes through the Golden Course is subject to such a call.  Thus, in an average water year, only 16% of the water claimed by Golden is not already subject to a downstream, senior call.  The Court also has on file settlement stipulations between Golden and upstream water users.  These various agreements subordinate up to 41 cfs of the Golden Course water rights to future exchanges for the benefit of future upstream uses.  This amounts to approximately two-thirds of the water claimed by Golden in an average year that is not already subject to a downstream senior call.  The Court also notes that Golden has agreed to provide 125 af of fully consumable dry year augmentation water that will meet Clear Creek County’s projected full build out requirements.  The foregoing further confirms the reasonableness of Golden’s appropriation. 

           The Court further finds that the testimony of the State’s expert witness, Dr. Shelby, does not assist the Court in rendering the decisions on  “beneficial use” and “reasonableness” that must be made in the context of the Colorado appropriation doctrine.  Water rights in Colorado are quantified according to the amount of water that is reasonable to serve the appropriator’s intended beneficial use.  Dr. Shelby did not take into account the intent of the appropriator, the City of Golden.  On this point, Dr. Shelby did not consider one of the major elements of his own methodology; namely, the decision environment, which in this instance is the law in Colorado on the appropriation of water.  Instead, his opinions were based on a survey of a small group of Course users.   The survey results purportedly offered the flow numbers that kayakers prefer for different boating opportunities, but the Court notes that those numbers are inconsistent with the kayakers’ narrative comments about the Course, which expressed a clear preference for higher flows.  Dr. Shelby also admitted that the survey was unduly influenced by the period of dry years following construction of the Course.  Moreover, Dr. Shelby was unable to express a definite opinion as to whether the amount claimed by Golden was unreasonable, and he admitted that his methodology did not work in the context of conditional water rights.  Thus, Dr. Shelby expressed no useful opinion on the conditional components of the subject application.

 

10.       Can and Will.  The Court finds and the State admitted that Golden can and will perfect the conditional portions of the claimed amounts within a reasonable time consistent with C.R.S. § 37-92-305(9)(b).  As part of this finding, the Court concludes that water is available in sufficient quantities and on sufficiently frequent occasions to complete the conditional appropriations with diligence and within a reasonable time.

 

F.         Findings for the City of Golden White Water Course (Extension).

 

1.         Name of Structures.  Golden intends to extend the length of the City of Golden White Water Course by constructing approximately 10 additional dam structures and water deflector control devices with boat chutes designed to concentrate and control the flows of Clear Creek for the beneficial uses claimed herein.  The structures in the Extension are referred to as City of Golden White Water Course Structures 8-18.  Conditional water rights are sought for each of these additional structures.

 

2.         Legal Description of Structures.  The Extension structures will be distributed within the channel of Clear Creek in a reach beginning immediately below Structure 7 of the Course, as described above at paragraph 5(B)(vii), and extending approximately 2750 feet within the channel of Clear Creek, terminating at a point in the SW1/4 of the SW1/4 of Section 27, T. 3 S., R. 70 W., of the 6th P.M., approximately 1,300 feet North of the South section line and 800 feet East of the West section line, in Jefferson County.  The location of the Extension is depicted on Exhibit A.

 

3.         Source.  The source for the Extension is Clear Creek, a tributary of the South Platte River.

 

4.         Date of Initiation of Appropriation: December 30, 1998.  The appropriation for the Extension was initiated before this date by formation of the requisite intent to appropriate for beneficial use coupled with actions sufficient to put third parties on notice of its intent. These actions include but are not limited to an authorizing resolution approved by Golden City Council.

 

5.         Intent to Appropriate.  The Court finds that Golden had the requisite intent to appropriate water for the Extension in the amounts claimed, in the months claimed, for recreational boating and piscatorial purposes.

 

6.         Beneficial Use. The court finds that Golden intends to use the rights to the Extension for the same beneficial uses described in Paragraph F(8), above.

 

7.         Can & Will.  The unrebutted evidence indicates that Golden can and will perfect said appropriations within a reasonable time consistent with C.R.S. § 37-92-305(9)(b).  As part of this finding, the Court concludes that water is available in sufficient quantities and on sufficiently frequent occasions to complete the conditional appropriations with diligence and within a reasonable time.

 

8.         Amount.  The conditional rights decreed to the Extension are set forth in Table 3.  As with the White Water Course, conditional rights must be perfected separately for each 12-hour period between 6:00 a.m. and 6:00 p.m. However, perfection of nighttime rights must be established from uses that occur between one-hour after sundown and one hour before sunrise.

 

Table 3

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

	Claimed cfs	70		70		70	255		1000	1000		1000	559	251	143		103	70
Absolute		0	0		0		0	0		0	0		0	0		0	0		0
	Conditional cfs	70		70		70	255		1000	1000		1000	559	251	143		103	70

 

 

            Colorado’s Compact Entitlements.  There is no evidence of any intent on the part of Golden to export water outside of Colorado, and the water rights sought in the application will not have that effect.  Because the rights sought in this matter are on Clear Creek in Golden, immediately upstream of major industrial, municipal and agricultural diversions of area in-state water users, it will not negatively impact Colorado’s ability to use its compact entitlements.  The unrebutted testimony of the former State Engineer, Dr. Danielson, established that the water diverted by the Course and Extension will be beneficially used and reused by downstream appropriators up to seven times before it reaches the Colorado-Nebraska state line.  The State conceded at trial that there is no adverse impact on Colorado’s compact entitlement as a result of this water right.

 

            Time of Use.  The evidence demonstrates that the Course is used every month and can be used both during the day and at night.  The decreed conditional and absolute amounts are set forth in Tables 1, 2 and 3 above.

 

CONCLUSIONS OF LAW

 

            Jurisdiction.  Timely and adequate notice of the filing of this Application was given as required by law and this Court has jurisdiction over this Application and over all parties affected thereby, whether or not they have chosen to appear.

 

            Diversion Structures.  Pursuant to C.R.S. § 37-92-103(7), a diversion of water may include “controlling water in its natural course or location by means of a . . . structure or device.”  The dam structures and flow deflector control devices which constitute the City of Golden’s White Water Course and which will constitute the Extension are such diversion structures or devices.  See City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992).

 

            Golden’s constitutional right to appropriate a new water right in accordance with Colorado law may not be denied or limited based upon the public trust doctrine, or similar policy restraints purportedly rooted in concern for the quantities that should be left for future water users. “[A] public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy.”  Board of County Commissioners, 891 P.2d 952, 972 (Colo. 1995); Aspen Wilderness Workshop v. Colorado Water Conservation Board, 901 P.2d 1251, 1263 (Colo. 1995).

 

 

            Recreational use is a beneficial use of water in Colorado.

 

RULING AND DECREE

 

G.        The foregoing Findings of Facts and Conclusions of law are fully incorporated into this Ruling and Decree by this reference.

 

H.        The absolute water rights for the structures constituting the City of Golden White Water Course are hereby decreed set forth set forth inTables 1 and 2, above. 

 

I.         The conditional water rights for the White Water Course are hereby decreed as set forth in Tables 1 and 2, above.

 

J.         The conditional water rights for the for the proposed Extension are hereby decreed in amounts as set forth in Table 3, above, for the respective 12-hour periods set forth in Tables 1 and 2. However, as above, perfection of nighttime rights must be established from uses that occur between one-hour after sundown and one hour before sunrise.  

 

K.        An Application for Sextennial Finding of Reasonable Diligence shall be filed on or before the last day of June 2007, if Golden desires to maintain its conditional water rights, or a showing made on or before said date that the conditional rights have been made absolute by completion of the appropriation.

 

            It is ORDERED that a copy of this Ruling shall be filed with the appropriate Division Engineer and the State Engineer.

 

            Dated this 13th day of  June, 2001.

 

 

            BY THE COURT:

 

 

 

                                                                        /s/

                                                                        _____________________________________

                                                                        Jonathan W. Hays, Water Judge

                                                                        Water Division No. 1