Taylor clings to old ways in fight over whitewater bill
Colorado’s water wars are taking a new twist. The old battles were about water diverted from the West Slope to the Front Range. Now they are becoming as much a fight for water between the “Old West” and the “New West.”Much has been made recently of cooperative water planning efforts springing up all over the state. Eric Kuhn, general manager of the Colorado River Water Conservation District, in a recent piece on by-pass flow requirements in their journal, wrote that, “a new era of cooperation and partnership has dawned for Colorado water users.”In the piece, which appeared in the Feb. 20 edition of the Denver Post, Kuhn states that, “Rather than imposing heavy-handed regulations to achieve the desired goal, federal agencies, state agencies, water users and other interested parties will work together to find mutually beneficial ways to protect both the environmental and local economic values.”Kuhn expresses a hope shared by many for solving water issues amid the changing needs of Colorado.Yet some folks don’t see it that way. There are some who insist on using the “heavy hand” of legislation to protect their interests. Senate Bill 62 is such legislation and flies in the face of Colorado tradition and law. Much of the egregious language was removed through amendments, but this law would still limit all future Recreational In-Channel Diversion (RICD) to only 350 cfs. This amount of water might work on a small stream, but for most recreation it isn’t nearly enough. Legislating an extra-small, one-size-fits-all solution is absurd.The most troubling facet of this bill is that it would, for the first time in Colorado history, strictly limit the amount of water that can be applied to a legally recognized beneficial use. This is unheard of in Colorado. No other recognized beneficial use is so restricted by law. The Colorado Constitution states that the right to divert water for a beneficial use “shall never be denied.” There is no qualifier saying “up to a point, depending on the use.”The authors of SB-62, Sen. Jack Taylor and Tom Sharpe, both of Steamboat Springs, claim that the bill is simply an attempt to make all water users “play by the same rules” according to their prepared statements. The concern is an “attack on Colorado’s water laws”But this bill is the real attack on Colorado’s water law, not the other way around.The 350 cfs limit is claimed to prevent “waste,” something that is already illegal. Waste, however, is determined by the amount of water needed when compared to the amount actually used, not on some predetermined amount. A 40 acre field of melons in Rocky Ford will need a different amount of water than 40 acres of hay in Gunnison. If one crop needs more water to grow than the other, I doubt Taylor or Sharpe would say the additional needed water is a “waste.” The same rules should apply to RICDs.The bill would also require that an RICD build a control structure having two sides and a bottom. All diversions require some kind of control structure. There are many types of structures that divert water, usually into a headgate and then down a ditch or pipe. RICD holders apparently are getting some kind of unfair break by not having a “control structure” similar to these other diversions.But RICDs don’t need a structure like that. They are not creating an “out-of-channel” diversion. There is no headgate, no ditch toward which the flowing water must be directed. RICD’s are already required to build control structures, structures that control water flow for a recreational experience. These structures make an RICD a legal diversion. A water right diverted into a stream has different hydrologic and engineering needs then rights diverting water out of a stream. Dictating the type of control structure for all RICD’s regardless of the situation, as with flow, is not only unfair, it is unjust.When addressing opposition to his bill, Taylor claims that “those guy’s have a hidden agenda, they want to control the stream above” (see “A fight for every drop,” at vailtrail.com, Feb. 17 edition). The only control an RICD could have is the same as any other water right working under Colorado’s priority system. If the RICD is senior, it could limit a junior right upstream from diverting its decreed amount of water. That’s the rule that everybody plays by. Taylor and Sharpe are the ones with the “agenda,” trying to unfairly change the rules and limit a legitimate water right and use.The ability to hold a court-decreed water right for a legitimate beneficial use, with the full amount of water needed, is protected by 130 years of Colorado law and tradition. It is the single most sacred water right in Colorado, even if that beneficial use is within the stream. Senate Bill 62, if passed and upheld, could change all that and set a very dangerous precedent.Taylor and Sharpe represent the “Old West,” the belief that any water left in the stream is wasted and not being properly applied to a truly beneficial use. They both need to wake up to the realities of the “New West.” Water left in its natural channel for recreation and the environment is an important part of Colorado’s future. RICD’s are a fair and legitimate right and don’t need to be “fixed.” VTKen Neubecker writes about water and the environment for the Vail Trail. He can be reached at firstname.lastname@example.org.
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