Whitewater case reflects the importance of tourism in state
BRECKENRIDGE – The state Supreme Court decision that guarantees water flow for recreational uses in the Blue River speaks volumes about how judges view the importance of recreation to Colorado’s bottom line.
The economy was among the arguments Breckenridge, Vail and Golden water attorney Glenn Porzak presented to the Supreme Court this week.
The court deadlocked 3-3 on a request by Front Range water interests to overturn a lower court’s decision to put recreational water rights on the same par as other water use rights. When the Supreme Court can’t reach a decision in a case, the judgment reached by the lower court stands.
For kayakers, rafters and other whitewater enthusiasts, the decision means upstream water users – Breckenridge’s upstream water user is Colorado Springs – cannot divert more water than what their water rights allow.
Porzak explained the allocation of water:
Currently, before any diversions, the historical flow of the Blue River is 1,000 cubic feet per second (cfs). But Colorado Springs has senior water rights that allow it to divert 500 cfs from its upstream water collection system near Hoosier Pass.
In the past, Colorado Springs could apply to divert Blue River water above its allotted 500 cfs.
Under the decision upheld by the Supreme Court, Breckenridge now has junior rights to the remaining 500 cfs.
When water flows are at or above 1,000 cfs, Colorado Springs can still apply to divert water in excess of its allotted 500 cfs, but it cannot cut into the 500 cfs reserved for use in the water park.
Should the Blue dip below its natural flow of 1,000 cfs, Colorado Springs can still divert its 500 cfs and leave Breckenridge with whatever remains, even if that is below 500 cfs.
What does it all mean?
Monday’s ruling preserves a minimum flow of 500 cfs in Breckenridge’s Blue River park, 400 cfs in Vail’s Gore Creek park and 1,000 cfs in Golden’s Clear Creek park.
“What you see is what you’re going to get for all time,” Porzak said. “That’s the enormity of this case to Breckenridge. When people see large flows in the spring, we know we’ve got that protected. That’s a pretty neat thing for the town of Breckenridge.”
The ruling not only delights whitewater enthusiasts but also sets a precedent for water law and recreational uses associated with them.
In a bitter court battle that began in 1998 – Porzak filed suits for Breckenridge and Vail in late 2000 – the state argued that large water rights cannot be used for recreational uses.
“They said they need to preserve water so they can take it out upstream,” Porzak said. “I asked, “Why is recreation a second-class use?’ Nothing says we have to preserve every drop of water for future diversion.”
Porzak also argued that Colorado water law is written to adapt to a changing economy.
“We’ve gone from a mining-based economy to an agriculture-based economy, then development, and now, recreation is becoming one of the state’s largest and most important industries,” he said. “Look at the economics. Recreation is way more valuable than hydropower or agriculture. Agriculture uses 90 percent of the state’s water, consumes about 80 percent of it and contributes 1 percent to the state’s (economy). Recreation consumes no water, and it contributes to 10 percent of the state’s (economy).”
Attorneys representing the state said the lower courts gave too much leeway to the three mountain towns.
“We felt like the water court granted water rights with virtually no limits on the amount that can be claimed,” said Doug Sinor, whose Denver law firm submitted a brief to the court. “In Golden and Breckenridge, the amounts claimed were equal to the peak flow in the river. Other water rights in Colorado are subject to limitations on the amount that can be appropriated. There needs to be some reasonable limits on amounts that can be controlled in the channel, not whatever kayakers wanted or whatever happened to be in the river at the time. Their mantra is more is better. Where’s the limit?”
The ruling also means Breckenridge, Vail and Golden have some of the largest water flows in the state. In comparison, the Shoshone Power Plant near Glenwood Springs has rights to about 1,200 cfs.
“That was another thing I told the court,” Porzak said. “Why is hydroelectric different than recreation? The state gets a greater economic benefit from the Vail and Breckenridge whitewater courses than it gets from the Shoshone Power Plant.”
Whitewater enthusiasts are breathing a collective sigh of relief.
“It’s been a long fight,” said Joel Heath, president of Untraditional Marketing in Vail, which produces the Teva Mountain Games. “That it lays the foundation for recreational use in the future is monumental. And for a tourism-related economy, the recognition that the recreational use of water is as important as agriculture is a big deal.”
“I think it’s great that the recreational use of water is more recognized,” said Erik Kuffman, program director for Summit Kayak School in Silverthorne. “It’s a huge step in the right direction. It’s great for the industry, great for the morale of Colorado.”
The battle might not be over, however. Other water users, notably anglers, generally prefer lower streamflows to catch fish. And the environmental ramifications of allowing higher streamflows have yet to be determined.
Legislation passed in 2001 governs these kinds of water rights applications as well, and could make it harder for future water parks to obtain water. That legislation didn’t affect the Golden, Breckenridge and Vail cases because they applied for the water rights before the bill became law.
The law gives the state an advisory role in analyzing the effect proposed water rights could have on in-stream flow rights, and it limits the amount of water that can be claimed to provide a “reasonable” recreation experience, Sinor said.
“These people all wanted to build “world-class’ whitewater parks,” he said. “That’s hard to quantify. Is it all the water in the stream because that’s what someone wants? The (2001) Senate bill recognizes there has to be some limit.”
Porzak still chalks up Monday’s decision as a victory for mountain towns dependent on tourism.
“It’s the proverbial foot in the door, and they’re not going to close it any more,” Porzak said. “It’s over. This case is done. Thank God.”
Jane Stebbins can be reached at (970) 668-3998 ext. 228 or email@example.com.
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