Colorado Supreme Court turns tide in favor of kayakers

Boaters get to keep water in the rivers while farmers watch in dismay

  • Kayaking on Clear Creek near Golden, Colorado

    COURTESY CITY OF GOLDEN
 

After a five-year battle, the Colorado towns of Golden, Breckenridge and Vail have won water rights for whitewater kayaking courses. In May, the state Supreme Court let stand lower court rulings that recognized the towns’ claims to peak river flows in May, June and July. Now, the towns’ water rights will trump any future claims to upstream water in Clear Creek, Blue River and Gore Creek (HCN, 5/7/01: Kayakers seek water rights). The ruling makes Colorado one of three Western states, along with Oregon and Montana, to recognize in-stream water rights for recreation, and it has traditional water-users worried.

Like most Western states, Colorado has traditionally granted water rights only to those who divert it from streams and use it for “beneficial” purposes, such as irrigation or mining. Although the kayak courses don’t take water out of the rivers, these “in-channel diversions” pump money into the towns’ economies, drawing paddlers and spectators to the rivers, says Dan Hartman, director of public works in Golden. “We think, in a larger sense, that the ruling has deemed recreation a beneficial use of water.”

Environmental groups, such as Trout Unlimited, see another benefit: Protecting whitewater rapids leaves river ecosystems intact and protects fisheries. “We’re not a kayaking organization, but these types of (recreational) rights do benefit fish, because they leave water flowing,” says Drew Peternell, staff attorney with Trout Unlimited. Recreational in-channel diversions may also prevent the construction of upstream dams, says Glenn Porzak, the towns’ attorney. The towns have rights to most of the spring runoff — the water that could be captured behind dams.

The Colorado Water Conservation Board and the state opposed the towns’ water rights, arguing that recreational rights would be detrimental to traditional water users. “What happens if we have to maintain an in-stream flow for recreational purposes when we need all the water we can get for food production— especially in a drought?” asks Ray Christensen, executive vice president of the Centennial-based Colorado Farm Bureau. The farmers have senior water rights, he says, but opening the door to new users puts additional strain on a system that is already stretched too thin.

But the real issue may be the age-old debate over “in-stream” flow rights. In the West, where water policy has historically been guided by the dictum “use it or lose it,” many people believe that leaving water in streams or rivers is a waste. “If the city of Golden had authorized a subdivision to take the full amount of water out of the stream, no one would have objected,” says David Getches, a water law professor at the University of Colorado, Boulder. This case puts recreational in-stream uses on equal ground with consumptive uses of water, he says.

Porzak says the case “opens the floodgates” to future in-channel rights for recreation, a significant change in a state where only the Colorado Water Conservation Board has been allowed to hold “in-stream” rights. But the Supreme Court ruling does not set any legal precedent for future cases, says Ken Lane, spokesman for the Colorado attorney general. With a tie vote from the bench, the court let the water court rulings stand, but did not issue an opinion to govern future cases, he says. Also, a law passed in 2001 may supersede the court’s decision. The law gives the Colorado Water Conservation Board advisory power in recreational in-channel diversions and allows only the minimum amount of water necessary for a “reasonable recreation experience.”

Porzak, the attorney for the three towns, responds: “People don’t come to Colorado to enjoy our ‘minimum’ amount of beauty, to climb our ‘minimal’-sized mountains or to have a ‘minimal’ recreation experience.” The court’s ruling and the new law will run the gantlet in September, when a water court determines how much water Gunnison County can claim for its new whitewater course.

Rosemary Winters author is an intern at HCN.

You can contact:

- Glenn Porzak 303-443-6800

- Colorado Farm Bureau 303-749-7500, www.colofb.com

- Colorado Water Conservation Board http://cwcb.state.co.us/.

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