Recreation Water Rights - "The Inside Story"

Home Browse Search

Recreational In- Channel Di (RICDs) Glenn E. Porzak, Esq. RECREATION WATER RIGHTS - "The Inside Story" Glenn E. Porzak, Steven J. Bushong, P. Fritz Holleman, Lawrence J. MacDonnell* I. Introduction The primary water uses in Colorado have evolved from mining to agriculture to large -scale municipal and industrial uses. There is, however, another emerging water use moving onto the stage, and that is recreation. The phenomenal surge in the demand for water for recreation reflects both the changing nature of Colorado's economy, and the flexibility found in existing water law and policy. This paper focuses on the significant evolution of Colorado water law between 1997 and 2006 that has created greater security for recreational water rights. A recreational water right is based on the traditional concepts of water appropriation in Colorado. First, there is a diversion of water by structures that concentrate and control specified flows. Second, there is beneficial use as these diversion structures create water features that are used by kayakers, canoeists, rafters, inner tubers and other boaters. Third, there is a need to protect a community's investment in its "boating park" and the recreation based economies that have that have grown around these parks. This is accomplished by obtaining a priority for a water right sufficient to protect the recreational use against future upstream diversions and exchanges. In short, just like a traditional water right appropriation for any other purpose, recreational water rights involve a direct human use of water to generate an economic benefit that is protected under the priority system. But that is where the tradition ends. The recreational water rights that are the subject of this paper are diverted and used within the historic stream channel. In the eyes of many of Colorado's most powerful water users — sometimes referred to as the "water buffaloes" -- when it comes to water appropriation, "traditional" has meant only out -of- channel diversion, and water consumption. The only exceptions tolerated were hydropower uses and the State -owned minimum instream flows to protect the natural environment to a reasonable degree. While the latter water rights are instream, non - consumptive uses like recreational water rights, they have been tolerated because they are limited to very low flows and may not be appropriated or owned by local governments or private parties. Instream flows may only be held by the Colorado Water Conservation Board ( "CWCB "), a State board generally controlled by traditional water users. In a dry year like 2002, when those minimum streamflows needed to be enforced the most, Colorado water politics prevented the CWCB from calling for any of its instream flows during the entire irrigation and domestic storage season. *Attorneys with the firm of Porzak Browning & Bushong LLP who litigated the Golden, Vail, Breckenridge, Steamboat Springs and Chaffee County RICD cases, represented the major pro- recreation amici in the Gunnison case, and represented pro - recreation interests in opposition to legislative attempts to defeat RICDs. CLE INTERNATIONAL 0 PAGE K -1 ■ COLORADO WATER LAW