BOARD00045 ‎(2)‎

• Board Meeting Date: 9/19/2006
• Description: Publication - The Water Report - Colorado Whitewater Courses and Water Rights
• Board Meetings - Doc Type: Memo

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Issue #30

The Water Report

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use of water and do so in a manner without "waste" of the precious resources. It is the identification and
assessment of "waste" that poses a difficult conundrum for water administration officials. The first aspect
that draws attention to recreational in-channel use is the actual application of water to its intended
beneficial use. In a conventional water administration action - that requires curtailment of junior water
rights to meet the demand of a senior irrigation water right - the efficient delivery of water to croplands
during the growing season satisfies the intuitive conclusion that the irrigation water right is being satisfied
because water is a necessary component in plant growth. In a similar manner, the enjoyment of kayak or
other boating enthusiasts (regardless of varying skill levels or types of watercraft) in a whitewater course
appears to satisfy the RICD water right. One discrepancy in this simplistic analogy arises where the
owner of an RICD chooses to exercise their authority to demand curtailment of junior water rights ("call"
the river), to provide sufficient flows to meet their adjudicated whitewater flow rates when there are no
boating enthusiasts present on the whitewater course.
A parallel water administration "waste" issue occurs in regard to fulfillment of a RICD water right in
daily water allocation practices. For example, the City of Steamboat Springs (City) was decreed a RICD
water right on March 13, 2006 with variable flows over the duration of the boating season for its
whitewater course (Case No. 2003CW86 in Water Division 6). The decree specified the City was limited
to its entitlement of whitewater recreational flows from 8:00 a.m. to 8:00 p.m. each day. Certainly, it is
appropriate that the adjudicated flows represent the time of intended use by whitewater enthusiasts during
daylight hours. However, this schedule of water administration is difficult to implement. Actual water
administration requires curtailment of water rights junior to the RICD in amount and location necessary to
satisfy the demand of the RICD, with no time constraint. To place the issue in proper context, the junior
water rights may be located tens or hundreds of miles upstream, on all tributaries throughout a watershed
and the transit time from each, separate, junior water right to the whitewater course is highly variable and
may extend from minutes to days based upon their relative proximity. It is appropriate that the City enjoy
the same confidence as all other water rights owners that subsequent junior water rights will be curtailed
to meet their demand. The crux of contention centers upon the issue of waste versus finite resources.
Natural river flows, diversions, and the ensuing return flow patterns from these diversions are in a
perpetual state of change. With finite human and fiscal resources, it is problematic to assume junior water
rights throughout the basin upstream of a whitewater course will be turned off to meet the downstream
demand for increased flows through a white water course and then turned on later in the same day so they
may apply water to beneficial use, while simultaneously preventing the waste of unused water flowing
through the whitewater course at night. Further compounding the administrative complexity, the City' was
granted the ability to extend its entitlement from 8:00 p.m. until midnight for up to 10 days between April
15 and July 15 for nighttime competitive events upon prior notification to water administration officials.

Opportunity and Enhancements
At this juncture, it is appropriate to return io the first tenet of water law and administration to
consider if the diversion structures constructed within a whitewater course satisfy the mandate to ~
maximize the beneficial use of limited water resources. The evidence clearly supports the assertion that '
these water control structures do indeed maximize the beneficial use of water. In addition to the sheer
enjoyment a white water course provides to individual participants and spectators, consider the tangible
economic benefits they provide to the sponsoring community. The testimony provided by representative
city managers, municipal park and recreation directors, economists, and local business owners is a
consistent proclamation that the accrued financial benefits to a local business community are significant.
In some communities, the incremental annual revenue has exceeded over $1 million that has been
attributed exclusively to the commerce derived from a newly constructed whitewater course (City of
Golden, Case No. 98CW448 in Water Division I).
The challenges previously described may be used as arguments by those seeking to dismiss the
adjudication of recreational in-channel diversions for a whitewater course as being unnecessary. It is
precisely that conflict that provides the impetus for advancing the daily practice, and art, of water
administration. An objective and critical review of historical water legislation, judicial decisions. and
administrative practices reveals multiple instances that validate the assertion that water administration
complexity has increased dramatically over time. For a singular example, the adjudication and
administration of surface water rights in Colorado began with territorial government actions in the late
nineteenth century. Almost a century later, the General Assembly and the DWR recognized the effect and
impacts of increased use of tributary groundwater upon streamflows and surface water rights. and fully
integrated groundwater within the water allocation practices in Colorado with the passage of the Water
Right Determination and Administration Act of 1969. It is, therefore, the contention of this author that

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