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Stopping the flow

Tom Boyd

Joel Heath has had a difficult week.As the president of the Mountain Games, LLC, and Untraditional Marketing, Heath has staked his career on the promotion and development of the Teva Mountain Games, the five-day sports festival which comes to Vail each year in early June.The Games bring kayakers, rafters, climbers, mountain bikers, and trail runners to Vail in early summer, a time when most resort towns are struggling to attracts guests and keep the local economy pumping. Although the Games are multi-sport, the marquee events center around kayaking and rafting, and they take place in Vail’s three-year-old whitewater park just downstream of the Covered Bridge.”The whitewater park is really the kingpin of landing the Games,” Heath said. “It’s the anchor event. It all comes back to whitewater it’s what we are in our soul, but it’s also the core of the event.”According to Senate Bill 216, passed in 2001, whitewater parks are required to have a particular kind of water right called a Recreational In-Channel Diversion (RICD).A new bill drafted by Steamboat attorney Tom Sharp and sponsored by District 8 Senator Jack Taylor (who represents Eagle County), is attempting to make these rights subordinate to all other water rights, specifically subordinate to “future upstream water storage and water development projects,” as the bill states.The bill also calls for RICDs to be limited to a maximum of 350 cubic feet per second and RICDs must also contain a “control structure,” defined in the bill as “A structure consisting of features constructed by humans that includes sides and a bottom”Glenn Porzak, a water attorney who represents Eagle River Water and Sanitation, and who is leading the effort to defeat the bill, says it will have a devastating effect on water parks and whitewater recreation.”This will absolutely kill water parks, without a doubt,” Porzak said.Playing by the same rulesThe bill is being introduced to the Senate Agriculture Committee Thursday, Feb. 17 its first stop on the way to the Senate floor. It has already received the support of the Colorado River Water Conservation District and the Colorado Water Congress. If it becomes a law, opponents say it could cripple events like the Mountain Games and the water parks in which they’re held.Taylor and the bill’s supporters disagree, saying the bill is not an attack on recreation.”This is certainly not an attack on kayaking at all, or an attack on any municipality,” Taylor said in a Feb. 1 interview. “The concern is an attack on Colorado’s water laws, and how they’ve worked well for 130 years.”Taylor says the bill is designed to make all water users, “Play by the same rules,” and fix the problems created by Senate Bill 216.”It doesn’t make any difference what the use of the water is,” Taylor said. “You’re changing water law as it stands today.”Senate Bill 216, he said, gave RICD holders water rights without making them show they can build a “control structure,” or dam, like other water-right holders must build. Water users have traditionally had to prove they weren’t wasting water, and Taylor said RICD holders needed strict guidelines as to what’s wasting water and what’s not.That amount, no matter what river or what park, is limited to 350 cfs in the new bill. That’s barely enough, opponents say, to float a boat, and certainly not enough to draw tourists and competitions.”Vail doesn’t even run without 700 900 cfs and we’re a very small park,” Heath said. “Who is (Jack Taylor) to set that level every river basin is different.”As the state senator from District 8 (which includes Eagle, Rio Blanco, Jackson, Routt, Moffat, and most of Garfield Counties), Heath believes Taylor should be supporting efforts to bolster recreation not endorsing a bill that subverts RICDs.Eagle County Commissioner Tom Stone also supported the bill in his role on the Colorado River Water Conservation District. He was among eight of 15 District board members who voted to support Taylor and Senate Bill 62.”It’s very frustrating,” Heath said. “I think Jack and Tom are selling out to development interests on this. Our area is based on recreation, and it’s very disappointing to see two people who are supposed to be supporting us giving in to the development industry.”Stone did not return multiple calls over several weeks asking for him to explain his stance to the readers of the Vail Trail, but he did tell the Vail Daily that he, “Supports recreational water use,” but that he, “also supports water for people to drink.”Porzak said there’s no concern that the valley will run out of drinking water because of recreational water use.Eagle County’s two other commissioners, Arn Menconi and Peter Runyon, came out against the measure in a letter to Taylor.The ski areas of Eagle, Grand, and Summit Counties, the major water providers in Eagle and Summit Counties, as well as the City of Steamboat Springs, have all come out in strong opposition to the bill.Taylor, Stone, and the bill’s supporters, Porzak says, are trying to, “legislate RICDs out of existence.”I wish they’d be a little more honest about it and come out and say these kinds of water rights are illegal. At least we’d have an honest debate about it.”A ‘second-class’ rightTaylor, for his part, said Porzak is acting for his own benefit, and not for the betterment of the law.”Those guys have a hidden agenda, they want control of the stream above,” Taylor said.The goal is to make water law equal for all kinds of water rights, Taylor said but many don’t see it that way.”If they’re trying to say this makes things fair for RICD as opposed to other, consumptive, uses, in my mind that’s a gross mischaracterization,” said Drew Peternell, the staff attorney for Trout Unlimited. “What this bill does is make RICDs second-class and inferior to all other kinds of water rights.”Trout Unlimited, for its part, isn’t concerned about the recreational impacts of the bill. But RICDs keep water in the riverbed and create a beneficial aquatic life habitat. That, Peternell said, is why his organization is against the bill.”Sometimes recreation and conservation don’t go hand-in-hand,” he said. “But in this case they do and that’s why we’re strong supporters of these recreational water rights.”In its first few lines, the bill also clearly requires that recreational uses of water become junior to all “future” upstream interests which Porzak says is unconstitutional.The State Constitution reads: “The right to divert the unappropriated waters shall never be denied.””You can’t deny a present use for a potential future use,” Porzak said.The SteamboatconnectionThe bill might have an immediate impact near Steamboat Springs, where unappropriated water is still available on the Yampa River. The City of Steamboat has applied for a RICD on the Yampa, but the Upper Yampa Conservancy District has filed a statement of opposition to that filing.Routt County’s Tom Sharp, the director and past president of the Upper Yampa Conservancy District, worked on drafting the bill. Any water developments in the Upper Yampa area would be junior to the RICD unless Senate Bill 62 passes.This has led some to accuse Sharp and Taylor, both from the Steamboat area, of creating a state law to solve a local dispute in their favor.But Sharp said there’s no, “hidden agenda” with his formulation of the bill. He said the bill was recently amended so that it will not apply to the Steamboat filing for a RICD. Porzak disagrees.”It’s real clever what they’ve done (with the new draft of the bill),” Porzak said. “They knew exactly what they were doing. On the one hand it looks like (Steamboat, Gunnison, Vail, Breckenridge, and Golden water parks) are grandfathered in on the other hand they’re not at all.”Porzak says Vail’s park is among many that could lose its water rights if Senate Bill 62 passes because the bill’s language isn’t clear about allowing parks that already exist, or have made a filing, exemption from the new law.But Sharp said the bill can be amended again.”There’s two things people should never see up close,” Sharp said. “And that’s the making of hot dogs and the making of laws.”The 350 cfs cap exemption language is intended to exempt any RICD water case that was filed prior to 2005 whether previously decreed or their decree is subsequently obtained,” he said.But Porzak can already see ways that existing RICDs would fall victim to the effects of the bill. The current version of the bill, for example, doesn’t protect current parks from the “control structure” issue, which could still be applied to minimize the cfs allowed in an RICD right.And with the Vail park, for example, he said there are still legal finalities that haven’t taken place. Vail currently has a 400 cfs water right Porzak is convinced Vail would lose that right when they move to finalize Vail’s RICD and it also might be given less than the maximum amount of 350 cfs.All or nothingFundamentally, however, there are no amendments to the bill that would be acceptable in the eyes of its opponents.Eagle County Commissioner Menconi said recent amendments don’t change the core of what it stands for: the subordination of RICDs.”If you take a man, and dress him up as a woman, and put him in a skirt and a wig well, he’s still a man, and that’s what’s going on with this bill,” Menconi said. “They still haven’t made any substantive changes.”Menconi and a group of other opponents will testify before the Agriculture Committee Feb. 17. They face a group of supporters who take a more traditional stance toward water use. As the old saying goes, “use it or lose it.” Many of those who support the bill support consumptive water uses or uses that take water out of the stream not leave it in.”The whole gig is that they’re trying to preserve water so they can divert it out of the river at some time in the future,” Porzak said. “It really comes down to a debate: do we want a situation in Colorado where 50 years from now we look around and say, ‘By God, we’ve succeeded we’ve taken every drop of water out of the river and put it to use,’ or do we want to put aside a bit of water and put it to use for recreation.”These guys aren’t going to be happy until they’ve protected the right to take every drop out of the river,” he said. VTKey elements of Senate Bill 62(6) (b) In determining whether the board shall recommend that the water court grant, grant with conditions, or deny such application, the board shall consider the following factors and make written findings thereon:(V.5) WHETHER ADJUDICATION AND ADMINISTRATION OF THE RECREATIONAL IN-CHANNEL DIVERSION WOULD PREVENT DEVELOPMENT OF FUTURE UPSTREAM WATER STORAGE AND WATER DEVELOPMENT PROJECTS(4)Lines 12-20WATER DIVERTED FOR A RECREATIONAL IN-CHANNEL DIVERSION IN EXCESS OF THREE HUNDRED FIFTY CUBIC FEET PER SECOND SHALL CONCLUSIVELY BE DEEMED TO BE WASTED, AND NOT PLACED TO BENEFICIAL USE; EXCEPT THAT SUCH LIMITATION SHALL NOT APPLY TO THE ADMINISTRATION OF A DECREED WATER RIGHT OR CONDITIONAL WATER RIGHT FOR RECREATIONAL INCHANNEL DIVERSION PURPOSES WHOSE APPLICATION WAS FILED PRIOR TO JANUARY 1, 2005, UNLESS A CHANGE TO SUCH WATER RIGHT IS THERAFTER APPLIED FOR A DECREED(6.3) “CONTROL STRUCTURE” MEANS A STRUCTURE CONSISTING OF FEATURES CONSTRUCTED BY GHUMANS THAT INCLUDES SIDES AND A BOTTOM, AND IS USED TO CONTROL WATER IN ITS NATURAL COURSE OR LOCATION FOR RECREATIONAL IN-CHANNEL DIVERSIONS(10.3) “RECREATIONAL IN-CHANNEL USE” MEANS KAYAKING, CANOEING, INNER TUBING, BOATING AND RAFTING.To read the entire Senate Bill 62 see the Colorado General Assembly website at leg.state.co.us.Argument against Senate Bill 62Prepared by Porzak Browning and Sushong LLP The amended bill still subordinates recreational water use It’s unconstitutional It caps recreation flows at 350 cfs the previous definition of RICD limited flow to the amount necessary for a “reasonable recreation experience.” Eliminates fishing as a beneficial use of water in Colorado Changes the diversion statute so RICDs must have a “control structure.” Applies retroactively to existing decreed rights and applicationsArgument for Senate Bill 62Provided by Sen. Jack Taylor Unless the definition of “beneficial use” is limited by statute, judges may interpret the term to include many kinds of enjoyable activities in or on a river, and vast stretches of the state’s streams and rivers can be tied up by what amounts to instream flow decrees held by almost every city and town through which a stream courses, measured by the unquatifiable notions of what constitutes the ideal level of “fishing flow,” or “rafting flow,” or “swimming flow,” or “wading flow” or “throw the stick in the river for the dog to retrieve flow.” The future use and development of our state’s water resources will be held in gridlock. The recent drought conditions caution us not to do so. Senate Bill 216 failed to describe what kind of “structure” would be required before the local governmental unit could obtain a RICD water right and before the holder of a RICD water right could be deemed to be in “control” of the river and make a “call on the river” in the future.Colorado Water Use 2002Agriculture 86.5 percentMunicipalities 6.7 percentRecreation/fisheries/in-stream flows 3 percentCommercial/industrial/institutional 1.9Augmentation and replacement of groundwater in shallow aquifers 1.9* Source: Citizen’s guide to water conservation prepared by the Colorado Foundation for Water EducationBreakdown of 2001 gross state product, by industry (in millions of dollars)SectorDollarsPercentageAgriculture/Forestry/Fisheries $2,738 1.5Mining $3,068 1.8Construction $11,827 6.8Manufacturing $14,991 8.6Transportation, Comm. & Utilities $19,317 11Wholesale Trade $10,714 6.2Retail Trade $16,909 9.7Finance, Insurance, & Real Estate $31,816 18.3Services $41,860 24.1Government $20,532 11.8Total$173,772Notes: Sector totals will not equal total GSP due to rounding and netting out of unallocated activity. Sector estimates based on preliminary 2001 BEA total GSP.Source: Bureau of Economic Analysis, May 22, 2003, and the Colorado Data Book.


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