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Water for recreation threatened

Arn Menconi, Rick Sackbauer and Ron Wolfe

With water-based recreation becoming an increasingly important part of the Colorado economy, communities are looking at their rivers in a whole new light. Just 10 years ago, only a few communities had whitewater courses. Now whitewater courses are found in Vail, Boulder, Aspen, Golden, Breckenridge, Loveland, Buena Vista, Salida, Steamboat Springs, Silverthorne, Gunnison, Durango, and Pueblo. Others, including Avon and Eagle County have courses either in the planning stages or under serious consideration. Yet once again, a bill has been introduced in the Colorado Legislature that would drastically curtail a community’s ability to put water to use for recreational purposes. Once again, state Sen. Jack Taylor, who represents communities heavily dependent on tourism and recreation, is supporting these restrictions. And once again, we have to wonder why.Whitewater parks, of course, require water. In states like Colorado, the only way to obtain a legally protected right to use water is to establish physical control over the water so that it can be applied to a so-called beneficial use. That’s exactly what communities are doing. They are hiring engineers like Gary Lacy of Recreation Engineering and Planning to design and build natural looking structures that control the water in a manner that produces a wide variety of recreational experiences. Not only are these parks attracting large numbers of kayakers, canoeists, rafters, and inner-tubers to the water, they are drawing even more people to watch, picnic, and shop in nearby stores.The economic payback from whitewater parks to date has been impressive. The town of Vail has determined that its whitewater park generated $1.2 million in five days by hosting the Teva Mountain Games last year. The city of Golden constructed a whitewater park on Clear Creek near the heart of its downtown in 1998. In 2000, a study found the park generated between $1.4 million and $2.0 million in annual economic benefits to the city. The Steamboat Springs Boating Park generates an estimated $7.2 million in annual benefits, according to a study completed in 2005. Especially important for mountain communities is that these whitewater parks attract people outside the ski season, helping to create sustainable, year-round economies. As significant as the economic benefits can be, towns are benefiting in other ways, as well. In many cases, these whitewater parks are sparking a rebirth in adjacent areas of the town, with parks and paths being built on land next to the whitewater parks. Salida has transformed the old Steam Plant directly adjacent to its whitewater park into a performing arts center and plans to add a new convention center. Pueblo is building a San Antonio-style riverwalk that includes a whitewater park along the Arkansas River as it flows through its downtown. Outside magazine called Buena Vista one of the “new American dream towns” because of a new urban-style residential development being built on 40 acres directly adjacent to the Arkansas River and the town’s new whitewater park. The project is being developed by Jed Selby, a professional kayaker drawn to the area by its beauty and its whitewater.Unfortunately, not everyone thinks keeping some water in-stream for recreation is a good use of Colorado’s water. The Colorado Water Conservation Board, a state agency whose statutory mission is the development of Colorado’s water, has spent an estimated $1 million of taxpayer money using state lawyers to fight communities seeking to get their water use for whitewater parks decreed in court as required by Colorado law. And although current law already puts significant limitations on recreational water rights for whitewater parks – allowing only local governments to have these rights, for example – state Sen. Jim Isgar, a rancher from the Durango area, is sponsoring a bill (SB37) to further limit uses of water for what are called “recreational in-channel diversions” in this session of the General Assembly. Sen. Taylor, who represents Eagle, Garfield, Jackson, Moffat, Rio Blanco and Routt counties, proposed a similar bill in last year’s legislature. His bill was defeated. Not surprisingly, Sen. Taylor has voted in support of the current proposed legislation.What’s wrong with SB37? For starters,n The new bill would limit water rights for recreational-in channel diversions, or RICDs, to uses only by kayaks. Yet a study of Steamboat’s whitewater park found that uses of other kinds of watercraft outnumber kayaking uses by 6 to 1.n The bill also would limit these water rights in ways that other Colorado water rights are not.n Despite Colorado’s first-in-time, first-in-right priority system, the bill would allow later users to take 2 percent of the water decreed to a RICD.n Under the bill, flows of water could only be protected between April 1 and Labor Day and from a half hour before sunrise to a half hour after sunset.n The community would be responsible for providing monthly reports to the state engineer documenting the number of kayakers who used the course and the dates of use.n In another dramatic departure from traditional water law, the bill would preclude the state engineer from protecting the RICD water right’s priority in times of water shortage.n A final major change would be to subject these rights to ongoing judicial scrutiny of matters the court had already decided in awarding the decree. Such a provision would throw out the common law doctrine that a matter already decided by a court should not be litigated again.It is true that existing RICD water rights would not be affected by this bill, if enacted. But consider the dilemma the bill poses for communities such as Eagle County and others thinking of building a whitewater park. Without a water right, there is no protection for whatever existing flows might still be available at the location of the whitewater park structures. New upstream water development would be free to pull that water out of the stream. The restrictions of kayak-only use, use documentation, sunrise-sunset usage and others would make the management of the water nearly unworkable. Sooner or later, the community’s investment in the whitewater park and the surrounding area could be high and dry.If a community decides to file for a recreation water right, here’s what it faces: a lengthy, contentious, and expensive water court process; simultaneously, a duplicative administrative review with the Colorado Water Conservation Board; and even if successful, getting a decree that can only protect flows for kayakers, that allows other users to take up to 2 percent of the decreed water, that cannot provide water in times of shortage, that includes onerous reporting requirements, and that is subject to being challenged in court again and again. Not a happy prospect.Recreational and other in-stream uses of Colorado’s water are increasingly important. Whitewater courses have proven to be enormously popular, creating real economic benefits for their communities. Senate Bill 37, supported by Sen. Taylor, among others, would effectively deny communities protection for this use of Colorado’s water, a position which just doesn’t make sense. We deserve better treatment from the people who are supposed to represent our interests. Arn Menconi is an Eagle County commissioner and a member of the Eagle River Water and Sanitation Board, Ron Wolfe is Avon’s mayor, and Rick Sackbauer is president of the Eagle River Water and Sanitation Board. Vail, Colorado


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