Tourism key in whitewater debate
BRECKENRIDGE – By default, Monday’s state Supreme Court decision that guarantees water flow for recreational uses in High Country creeks and rivers reflects the growing importance of recreation to Colorado’s bottom line.
The economy was among the arguments water attorney Glenn Porzak, representing the communities of Vail, Breckenridge and Golden, presented to the Supreme Court last week.
The court deadlocked 3-3 on a request by Front Range water interests to overturn a lower court’s decision to put recreational water rights on the same par as other water-use rights. When the Supreme Court can’t reach a decision in a case, the judgement reached by the lower court stands.
For kayakers, rafters and other whitewater enthusiasts, the decision means upstream water users cannot divert more water than what they are permitted under their water rights.
For example, the natural flow of the Blue River is 1,000 cubic feet per second, or cfs, but Colorado Springs has senior water rights that allow the city to divert 500 cfs from its upstream water storage facilities near Hoosier Pass.
“The Supreme Court’s decision means they cannot take any more (than they’re currently allowed) if that (additional) diversion would result in a flow of 500 cfs or less in the Blue River,” Porzak said. “What you see is what you’re going to get for all time. That’s the enormity of this case to Breckenridge. When people see large flows in the spring, we know we’ve got that protected. That’s a pretty neat thing for the town of Breckenridge.”
Alternatively, in wet years, if the water flow in the Blue River reaches, say, 550 cfs, upstream water users could divert that extra 50 cfs to the Eastern Slope.
With respect to water parks, the ruling preserves 400 cfs in Gore Creek in Vail, 500 cfs in the Blue River in Breckenridge and 1,000 cfs in Clear Creek in Golden.
Setting a precedent
The ruling not only delights whitewater enthusiasts, it sets a precedent for water law and recreational uses associated with them.
In a bitter court battle that began in 1998 – Porzak filed suits for Vail and Breckenridge in late 2000 – the state argued that large water rights cannot be used for recreational uses.
“They said they need to preserve water so they can take it out upstream,” Porzak said. “I asked, “Why is recreation a second-class use?’ Nothing says we have to preserve every drop of water for future diversion.”
A major part of his argument dealt with the changing face of Colorado’s economy. Water law is written so it can adapt to change, Porzak said.
“We’ve gone from a mining-based economy to an agriculture-based economy, then development, and now, recreation is becoming one of the state’s largest and most important industries,” he said. “Look at the economics. Recreation is way more valuable than hydropower or agriculture. Agriculture uses 90 percent of the state’s water, consumes about 80 percent of it and contributes 1 percent to the state’s (economy). Recreation uses no water, and it contributes to 10 percent of the state’s (economy).”
It also means Vail, Breckenridge and Golden have some of the largest water flows in the state. By comparison, the Shoshone Power Plant near Glenwood Springs has rights to 1,200 cfs.
“That was another thing I told the court,” Porzak said. “Why is hydroelectric different than recreation?’ The state gets a greater economic benefit from the Vail and Breckenridge whitewater courses than they get from the Shoshone Power Plant.”
“A big deal’
Whitewater enthusiasts, meanwhile, are breathing collective sighs of relief.
“It’s been a long fight,” said Joel Heath, president of Untraditional Marketing
in Vail, which sponsors the Teva Mountain Games. “That it lays the foundation for recreational use in the future is monumental. And for a tourism-related economy, the recognition that the recreational use of water is as important as agriculture is a big deal.”
“I think it’s great that the recreational use of water is more recognized,” said Erik Kuffman, program director for Summit Kayak School in Silverthorne. “It’s a huge step in the right direction. It’s great for the industry, great for the morale of Colorado.”
The battle might not be over, however. Other water users, notably fishermen, generally prefer lower streamflows to catch fish. And the environmental ramifications of allowing higher streamflows have yet to be determined.
“It’s the proverbial foot in the door, and they’re not going to close it any more,” Porzak said. “It’s over. This case is done. Thank God.”
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