Supreme court deadlocked on rec water rights
DENVER – The Colorado Supreme Court on Monday upheld the right of three Colorado communities – Vail, Breckenridge and Golden – to use water for whitewater kayak courses in a ruling that one lawyer said recognizes the importance of the recreation economy in the West.
On a 3-3 tie, the state’s high court allowed decisions to stand that the three Colorado communities may maintain peak flows on kayak courses, primarily during the summer. The Colorado Water Conservation Board, which sets water policy, sought stricter limits on water use.
The case was viewed as a modern water war between newer economic interests such as recreation, and more traditional water users.
“”Historically, the irrigation of crops is beneficial, but recreation is important to the state’s economy, too,” Golden attorney Dan Hartman said. “”This is an appropriate use for water and there is a benefit to it.”
Attorney Glenn Porzak, who represented the three communities, predicted that other entities would file recreation claims for water rights.
“”This represents the first large-scale attempt to obtain water for recreation purposes,” he said.
Western water law usually favors established users, primarily agriculture. To secure water rights under current law, users must have plans to divert water from its natural course, requiring recreational users to get permission to use the water from whomever holds the water rights and from adjacent landowners.
The communities diverted water by installing large boulders and dams to make the water eddy, something kayakers seek. They then sought the rights from the state water court.
The conservation board and the state engineer argued that the communities wanted too much water and their requests would harm other entities.
For Golden, the water court ruling will ensure a flow of 1,000 cubic feet per second, or cfs, from May to July, an amount state officials have said was available only nine days a year. Vail will get 400 cfs in Gore Creek and Breckenridge 500 cubic feet per second in Blue River.
“”This provides a great asset for the community and boaters,” kayaker Ben Focht, 27, said while in Clear Creek, near Golden, Monday.
“”It brings tourists and whitewater enthusiasts to the areas and those people in turn spend money in the area,” said John Rice, with Clear Creek Rafting.
In 2000, the state Legislature approved a law allowing the conservation board to weigh in on recreational water-rights applications by cities and towns in the future. That law will not apply to Golden, Breckenridge or Vail.
Chief Justice Mary Mullarkey and Justices Alex Martinez and Michael Bender voted to uphold the water court’s judgment, and Justices Rebecca Love Kourlis, Nancy Rice and Ben Coats voted to reverse it.
Justice Greg Hobbs did not participate, and that caused the tie vote. Hobbs, a former water attorney, cited potential conflicts of interest.
On the Net:
Supreme Court: http://www.courts.state.co.us/supct/supctindex.htm. The cases are Nos. 01SA252, 01SA224, 01SA226.
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