State Supreme Court ruling firms up rights of recreational water users
DENVER – The Colorado Supreme Court ruled Monday that state officials exceeded their authority when they recommended less water for a kayak course than the backers requested, marking a victory for the surging water recreation industry.The ruling said the Colorado Water Conservation Board ignored state law and its own rules in its recommendation for a whitewater course on the Gunnison River. The court ordered a Water Court judge to send the case back to the board for proper analysis.The ruling is expected to help clarify a 2001 state law allowing manufactured whitewater courses to have enough water for a “reasonable recreation experience” without jeopardizing the rights of upstream users.”The bottom line is that kayak courses are here to stay, a lot of people are doing these, they will get water rights,” said water lawyer Steve Sims, a former assistant attorney general who helped craft the law.”It’s something you have to consider now when you’re looking at the water-rights picture in Colorado as a whole, and this decision helped clarify this issue,” Sims said.
The Gunnison River kayak course was the first case to reach the state Supreme Court under the new law, which some groups criticized as vague.The Upper Gunnison River Water Conservancy District had asked for a minimum of 270 cubic feet per second for a kayak course from May through September, but the state board recommended only 250 cfs.The district appealed, and the Supreme Court ruled the state board had failed to adequately study the district’s request or plans.”Instead, the findings and recommendation made by the (state board) literally ignored the application before it in favor of opining generally on its perception of the appropriate stream flow and more reasonable recreation experience,” the Supreme Court said.Cynthia Covell, a lawyer representing the kayak course backers, said the evidence supports providing the higher water level, which she said is less than the river’s average flow in the May-September recreational boating season.Boulder attorney Glenn Porzak, who has handled whitewater courses for the cities of Golden, Vail, Breckenridge and others, applauded the ruling.
“It’s what we’ve always said from Day 1,” he said. “It’s not the (state board) who determines what’s a reasonable recreation experience, it’s the applicant that initiates these water rights and what they’re intending to provide to recreationalists.”Until a 1992 Supreme Court ruling, Colorado law did not recognize rafting, kayaking and other recreational uses as having a valid claim on the state’s water. But recreational groups have been gaining clout across the West, prompting lawmakers and courts to work on refining the balance between recreational and traditional uses of water.This year, Colorado lawmakers are debating whether to set strict definitions on the use of water for “recreational in-channel diversions” and limit all new recreational uses to 350 cfs.”Where these recreational flows start to create problems is if they are set up in such a way that they prevent those above them, no matter what, in the future from making beneficial consumptive uses,” said attorney David Robbins, who filed a “friend of the court” brief in the Gunnison River case on behalf of the Rio Grande and Southwestern water conservation districts.He said the two districts were neutral in the Gunnison case but wanted the “minimum flow” and “reasonable experience” standards clarified.
Steamboat Springs lawyer Tom Sharpe, who is helping push the new proposal now before the Legislature, said Monday’s ruling affirms that recreational in-channel diversions are like other water rights and should not be allowed to take more than the maximum flow in its defined “beneficial use” range.He said whitewater enthusiasts and local governments that benefit from kayak courses argue that if water is available, they should be guaranteed enough to keep the courses open.But he said numerous recreational rights could cripple residential and commercial development by requiring that so much water be left in a stream that not enough is available to be removed for other uses.”Each side is viewing it from a different perspective and that is why it is such a heated argument,” Sharp said.”What happens in the debate is while the focus should be on what is minimally necessary for beneficial use, the sides aren’t speaking the same language,” he said.
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