Colorado Whitewater Courses and Water Rights

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issue #30 The Water Report 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 whitewater 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 to 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 whitewater 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 1). 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 Copyright© 2006 Envirotech Publications; Reproduction without permission strictly prohibited.