Whitewater Park Ruling May Haver Larger Impact

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