Letters to the editor | VailDaily.com

Letters to the editor

Brian Sipes

Dear state Sen. Taylor: I am writing today to urge you to withdraw your sponsorship of SB 62 because I believe it to be bad legislation aimed squarely at eliminating a legitimate, non-consumptive environmentally sound use of water that is vital to the ever changing recreation based tourism economy many your constituents depend upon. Why you are sponsoring this obviously dangerous legislation remains a mystery to me, but I sincerely hope that this letter and the many others you undoubtedly have received will serve to advise you as to how very much opposed a large majority of the residents of your district are to this legislation. The reasons for our opposition are varied, but I believe are all rooted in the belief that this is an attack on our right to local control of our economies.The Avon Town Council, of which I am a member, recently voted unanimously to pass a resolution in opposition. I am choosing to write this letter to you to further plead with you, not as a council member, but as a constituent to explain some of the many reasons we feel that this legislation is fatally flawed. One of the fundamental tenants of Colorado water law has always been that all rights are equal and only subject to the seniority by which they were adjudicated. There has never been a defined right that is more important than any other right, either senior or junior. This fundamental idea has served to provide and maintain balance because of its simplicity. Upstream users cannot say that their right is more important because it is a municipal right if it is junior to a downstream right that is agricultural. Denver cannot claim its rights in Dillon reservoir are more important than the Grand Valley agricultural rights or the Shoshone call. Whole reservoirs such as Wolford Mountain were constructed to satisfy these downstream users based upon this principle. SB 62 would dangerously change this delicate balance forever because it for the first time would begin to redefine the importance of water rights based on something other than seniority. SB 62 states that RICDs are less important than any future (read junior) upstream rights that may be developed. Once defined in this fashion, what is to prevent the Legislature from further defining that municipal or transmountain diversions are more important than agriculture senior rights?Most importantly of all is the fact that SB 62 represents an attack on local control by giving the Legislature the power to determine what kind and degree of recreation our community has the right to attract. By setting a 350 cfs limit on RICDs the Legislature is fundamentally saying that you can create a play area, but not a world-class park and also that you may have to create structures to channel the water to make 350 cfs even workable hydraulically for many larger creeks and small rivers such as the Eagle. It is fundamentally unfair to apply this different and higher use standard uniformly across river basins of unequal size and historical flow. There is a term called “duty of water” that says that different uses require different amounts of water. An acre of alfalfa does not require the same amount of water that an acre of grapes require, and the law recognizes this. The law should also recognize that different water parks located in dramatically different topography will logically require differing flows of water, and a law that artificially imposes a uniform standard despite this fact is fatally flawed unless it seeks to curtail or eliminate RICDs.More importantly, SB 62 begins to define “waste” in a way that it has never been contemplated before. The waste provision defines that any water used for recreational boating in excess of 350 cubic feet per second is a waste. Again, there is no logic to defining a maximum use of water for recreational boating that doesn’t also take into account the hydrology of the particular stream or river topography or location. The problem with beginning to redefine this through legislative action is that this definition could be broadened to define flood irrigation as waste or that if you are not using drip irrigation, you are wasting your right. Again, this defines how important your right is relative to others and will fundamentally change the game.SB 62 changes water law in Colorado through legislation and not through the more traditional method of the water courts. The water courts are versed in the history and arcane nuances of our water law and are better equipped to understand the sometimes hidden but broad unintended consequences. As I understand it, the state water courts have before them two cases that would address the primary questions that this bill seeks to define. The experts should be allowed to review and rule on these issues rather than jumping to create legislation.RICDs and the recreation they create and foster are the new industrial water rights in the West. The amount of revenue they can generate for a community is well documented, and the competition to develop the most attractive features is fierce. SB 62 seeks to eliminate this highly profitable non-consumptive use of water by making them unmanageable, their amounts unworkable to create truly attractive features in a competitive market, and to thereby limit local control of water rights. It also sets dangerous precedents in law that may be used to someday tip the balance toward Front Range land use at the expense of West Slope low-impact recreation. It is wrong and must be defeated.I strongly urge you again to withdraw this legislation. Should you choose to continue to promote this bill, I then urge all other senators and representatives of all districts to join together to defeat this legislation.Brian SipesAvon Vail, Colorado

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