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<br />News Story #2
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<br />000679
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<br />Whitewater Park ruling may have larger impact
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<br />Colorado Supreme Court weighs in on local issue
<br />by Kristina Johnson
<br />~he battle over recreational wate~ rights fo: ~he ~unnison Whitewater Park was ~gQ",.e~...~~ to the ~tartin~
<br />1tW'l~.J)H Mqnc:lcly"March 14, following a deCISIon In the case by the Colorado Supreme COl.ift.
<br />Tlie state's highest court found that the Colorado Water Conservation Soard (CWCS) and the Division
<br />Four Water Court had erred in their consideration of the original application for water rights for the kayak
<br />course, and ruled that the matter should return to the water court for review.
<br />The Gunnison Whitewater Park, which opened in May 2003, occupies nearly one-quarter mile of the
<br />Gunnison River channel just west of the City of Gunnison. The park's course includes six structures that
<br />enhance whitewater by creating waves, eddies, and holes in the river,
<br />Monday's state Supreme Court decision brought a mixed response from the Upper Gunnison River Water
<br />Conservancy District (UGRWCD), which has fought to lock in recreational rights for the Whitewater Park
<br />since March 2002, when the kayak course was still in its conceptual stage.
<br />On one hand, the return of the case to water court is disappointing, says UGRWCD attorney Cynthia
<br />Covell, because it could mean another long, costly legal struggle to secure recreational rights.
<br />On the other hand, Covell explains, the Supreme Court's decision backs up the legal arguments the
<br />UGRWCD has been making in the case all along-that the UGRWCD, not the CWCS, should be the entity
<br />to determine how much water is needed for a reasonable recreational experience in the Whitewater Park.
<br />.. The good news is they really bought all of our legal arguments about what role the CWCS plays," Covell
<br />says.
<br />IH."M2n<t~Y'~~.;;~!rCil'1i~ll1ous decision;;theSl,Ipreme Courtju~tices found tllat both the water court and the "
<br />~9WCB-rfjl:fdeerrors in the original process that led Judg~teven Pattickto grant recreational)Ylitter rights
<br />for the Whitewater Park on December 26, 2003. . -,,,";/
<br />Rather than reviewing the Whitewater Park's request for water flows varying from 270 cubic feet per
<br />second (cfs) to 1,500 cfs, the CWCS proposed its own flows, recommending significantly less water-a
<br />flat 250 cfs-for the kayak course (one cfs is roughly the equivalent of 646,300 gallons of water flow per
<br />day). Sy doing so, the CWCS ignored state law, according to the Supreme Court's 56-page decision.
<br />.. The CWCS exceeded its authority...ignoring the application before it in favor of opining generally on its
<br />perception of the appropriate stream flow and more reasonable recreation experience," the justices wrote
<br />in their decision,
<br />The court ruled that both the CWCS and the water court misinterpreted Senate Sill 216, the legislation
<br />allowing government entities such as the UGRWCD to apply for recreational water rights.
<br />The rights Judge Patrick approved for the Gunnison Whitewater Park were the first granted in Colorado
<br />after Senate Sill 216 passed into law in 2001.
<br />At that time, Judge Patrick granted the Whitewater Park rights to roughly 40 percent of the Gunnison
<br />River's water flow. He agreed to the UGRWCD's request that 1,100 to 1,500 cfs be guaranteed to flow
<br />through the park during the summer months, and denied the CWCS's suggestion of a flat flow of 250 cfs,
<br />which UGRWCD argues is the absolute minimum necessary for a reasonable recreation experience on
<br />the river.
<br />Now the case will return to Judge Patrick's court, but he will be required to hear a new recommendation on
<br />it from the CWCS,
<br />According to UGRWCD manager Karen Shirley, "TQ<~Jc:listris;t is confident that Judge Patrick will again fin,d
<br />that the district is entitled to a decree for the water*fight it i:tppropriated."
<br />She adds that the UGRWCD carefully considered the availability and need for water in the Gunnison River
<br />when it applied for the recreational right, and presented that information to Judge Patrick during the
<br />original trial.
<br />In total, Shirley notes, the UGRWCD and Gunnison County have spent more than $600,000 in the pursuit
<br />of water rights for the park and the construction of diversion structures within the river.
<br />Representatives of the CWCS maintain that they are happy with the Supreme Court's decision.
<br />.. I appreciate the Supreme Court's guidance with regard to the applicable procedures for RICDs
<br />[Recreational In-Channel Diversions], the role of the CWCS in reviewing RICDs, and the proper
<br />interpretation of Senate Sill 01-216," says CWCS director Rod Kuharich.
<br />According to Ted Kowalski, RICD program manager for the CWCS, the organization is satisfied with the
<br />Supreme Court's decision because it directs the water court, in granting recreational water rights, to use a
<br />standard based on the minimum water flows necessary for a reasonable boating experience, which could
<br />reduce water flows granted for the Gunnison Whitewater Park.
<br />.. The [water] court didn't think they had to do that last time," Kowalski explains.
<br />The CWCS's intention in arguing for lower flows for the Whitewater Park, according to Ted Kowalski,
<br />RICD program manager for the CWCS, is simply to maximize use of the state's limited water.
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<br />http://www.crestedbuttenews.com/news2.htrnl
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<br />3/17/2005
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