The Paddle Battle
By rearranging rocks in the creeks that bisect the commercial cores of their respective towns, town officials hoped to attract kayakers to the fast water during a slow time of year – late spring – thereby helping drum up retail sales. Because kayak parks without water are nothing but a pile of rocks, both filed for rights to water flows.
“We had a capital investment of $250,000 to $300,000 to put the facility in, and we felt it prudent to file for water rights to protect our investment,” explains Bob McLaurin, Vail town manager. “Right now, 70 percent of our sales tax comes in the winter, and this is an opportunity to make the pie a little bigger, if you will. If you’re looking for some activity in Vail during spring, it’s either water or mud.”
Colorado’s state government objected to those decrees, and earlier this year took the two towns to court. The Colorado Water Conservation Board, which is the state’s lead water policy agency, lost the Vail and Breckenridge cases, but is appealing the decision to the Colorado Supreme Court. A similar case involving Golden will be heard first by the high court, with oral arguments scheduled to begin Oct. 2.
Why would state officials object to water being in kayak courses in Vail and Breckenridge? The short answer is that they probably don’t. Both towns sit high in their watersheds, with little potential use above them, and their filings are for relatively small amounts of water. These two particular kayak courses threaten nobody.
The real case is at Golden, and the issue is control. Golden’s kayak park would limit how water can be manipulated from one place as needs change, particularly those of growing cities. This conflict, according to some, is as fundamental as Old West vs. the New West, a clash of development vs. lifestyle amenities the development is based upon.
Clash of visions
“What it’s really all about is power,” says Glenn Porzak, an attorney who represents Breckenridge and Vail, as well as Golden. “Historically this state’s heritage and legacy was in mining, and then it changed to agriculture,” he explains. “And I think now the baton has been passed to recreation.”
Transmountain diverters and agricultural groups are fighting this shift toward recreation, he says. “Water for recreation is foreign to them, and they tend to resist anything that’s foreign.”
Mike Bestor, Golden’s city manager, has even gone so far as to describe directors of the Colorado Water Conservation Board – often called simply by its acronym, the CWCB – as old men with outdated views, a description Porzak agrees with.
Melinda Kassen, director of Trout Unlimited’s Colorado Water Project, describes the CWCB as being driven by a development agenda. The agency’s chief mission, she says, is to make sure Colorado gets all the water it is allowed under interstate compacts. Development – of houses, stores and such – is the surest way of making sure no unclaimed water gets to Nebraska or Utah.
Is it really that simple? Ted Kowalski, an attorney for the CWCB, agrees the agency is mandated to assure “maximum potential utilization of Colorado’s water resources.” But the real issue, he says, is whether Golden gains a monopoly on defining that particular vision for Clear Creek.
“It upsets the balance of power, if you will, where Golden becomes the holder of all the power,” he says.
Doesn’t the power plant in Glenwood Canyon exert the same kind of control? After all, the Colorado River runs dry for eight months a year along a three-mile stretch near Glenwood Springs because of the plant’s water demands.
That’s different, Kowalski insists. It takes thousands of dollars to build a kayak park, many millions to create a power plant. Golden is claiming everything in the river all the time. There’s a limit to what the power plant claimed.
Relatively new idea
Allocating water specifically for recreation is a fairly new idea in Colorado. Fish, and hence fishermen, benefited from reservoirs, and that benefit was recognized – but only as a byproduct. Flows for rafting use were sometimes negotiated, but on a voluntary basis.
In 1985, the city of Fort Collins created a kayaking course in the Poudre River. Instead of diverting water from a creek, Fort Collins declared a benefit by keeping the water in a creek for a specified length.
But the more important case came in 1998, after Golden built its kayak park in Clear Creek, then filed for 1,200 cubic feet per second of water – basically all the water in the creek during spring runoff.
Like Vail and Breckenridge, Golden portrays its interest as economic. The kayak course there is near the town’s historic business district, one that has, like many old districts, struggled in recent decades. This course appears to be helping infuse new vitality in the district, altogether $1.5 million annually, according to one study.
“It’s busy way beyond any of our expectations,” says Dan Hartman, Golden’s public works director. “I am just stunned that this course is used, weather permitting, nearly 12 months a year. We will have people boating at 5 a.m., before they go to work, and we have people here at 11 at night. We even have people with their car lights on, so they can boat during the evening.”
By Colorado law, Golden’s 1999 claim on the water that gushes through the kayak park is junior to those filed previously. That means most claims on Clear Creek are senior to Golden’s.
But only a few towns – Georgetown, Silver Plume and Idaho Springs – are upstream of Golden. These towns have water rights to satisfy existing needs. But what, for example, if Georgetown decides to sprout high-rise condominiums? Then it might need rights to additional water, and it might have to go buy water from a farm now using it near Brighton.
In this theoretical case, Georgetown wouldn’t be hauling the water up Interstate 70 in trucks. Instead, it would just scoop water from Clear Creek. But if the water is now obligated to pass through Golden’s kayak park first, then Georgetown is out of luck.
A matter of principle
The fight is not really between Golden and Georgetown, but rather the principle – and how it plays out elsewhere. Obligating large amounts of water downstream prevents water rights from being moved upstream. And in future years, that’s likely to be where water rights are moved – upstream.
That’s because 93 percent of Colorado’s water is used for agriculture, according to a study by the state Department of Agriculture. Most of that agricultural water is used in lower elevation and hence downstream areas. Most people want to live and play upstream, near and in the mountains.
“It’s all about the future and the ability to move water and the flexibility of the water rights system,” says Chris Treese, director of external affairs for the Colorado River Water Conservation District.
Also at issue is what is required to get such water rights – can a few rocks be jostled in a river to create a kayak course, hence justifying a claim?
Fears by the state government are such that in a memo written two years ago, state officials warned of somebody building a kayak course west of Grand Junction, causing water that would otherwise be used in Colorado to flow into Utah. Because of such fears, CWCB representatives last year asked state legislators to give them sole authority to file for water rights for kayak courses. Towns and cities objected loudly, describing it as an attempt to make recreation “a second-class citizen.”
The compromise, struck in a law passed by the Colorado Legislature in 2001, more tightly curbs who can claim water for recreation and how much. A private developer couldn’t build a kayak park in Minturn, for example, and then claim water as a way of precluding all development at Red Cliff.
Porzak, the water attorney for Breckenridge and Vail, doesn’t disagree that water rights for recreation makes moving water rights around for development more difficult.
“That’s the whole point of a water right. It’s OK when an agriculture user does it and it’s OK when a municipal user does it, but it’s wrong when a recreational user does it?” he asks indignantly. “The law makes no distinction.”
But Kowalski, speaking for the CWCB, says the argument is over what amount of water is “reasonable and appropriate” to create waves in Golden’s kayak park. By claiming as much water as the creek has carried in the past 30 years, Golden is attempting to grab absolute power over the creek. Half as much water would create waves equally as thrilling, he says.
The way he describes the situation, Golden could become a troll at the bridge. If anybody wanted to change use, such as diverting additional water upstream, Golden would have veto power. The city could, he says, demand exorbitant fees.
Quality of life
In Golden, Hartman argues that Colorado’s best interest is not to add population, but instead to improve quality of life.
“We would argue fairly strongly that the quality of life in Colorado is not dependent upon using water to our maximum extent for population growth, that the quality of life is clearly tied to the ability of people living here to be able to use some of this water for recreational purposes,” he says.
That’s the argument in Golden, and also on the Western Slope, where leaders argue that the new economy of tourism and recreation depend upon having water in creeks and rivers.
But along the Front Range, whose interests dominate state government, the dominant argument is instead about not disrupting the state’s ability to accommodate more people. And when, they ask, did lack of water ever stop people from moving here?
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