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<br />lIP <br /> <br />News Story #2 <br /> <br /> <br />Page 1 of2 <br /> <br />000679 <br /> <br />Whitewater Park ruling may have larger impact <br /> <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. <br /> <br />http://www.crestedbuttenews.com/news2.htrnl <br /> <br />3/17/2005 <br />