Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. The recreation water rights discussed in this paper are different from the state -held minimum stream flows. First, they involve control and possession of water using man -made structures. Second, they are for beneficial uses of certain flows of water at and between the structures. Third, they are not appropriated directly for environmental purposes, but for recreation use, and the appropriator is putting water to use for economic benefit. Most significantly, unlike CWCB held instream flows, the new recreation water rights have been secured for very large flows. To the traditionalist water buffaloes, these large, nonconsumptive, in- channel, recreation rights in the hands of non -State entities, was, and remains to a lesser decree, Western Water Law heresy. Recreational water rights are controlled by local governmental entities whose area economies are dependent upon boaters, and the spectators that flock to these communities to watch special competitive events. These communities are less vulnerable to State water politics, and will call for their water in a dry year when enforcement of their water right is truly needed. The greatest threat to the water buffaloes was the sheer size of most recreational in- channel diversions - claims that ranged up to 1800 cfs. To them, it was irrelevant that none of the water used for recreational purposes was consumed. To them, it was irrelevant that agricultural diversions hold senior rights to nearly 90% of the State's water, while generating less than I% of Colorado's gross product. To them, it was immaterial that the municipal diverters held senior rights to significant amounts of water, and that it was primarily citizens of the large Front Range municipalities who traveled to and utilized the new boating parks. To them, it was irrelevant that the Western Slope boating parks could function off of flows that Colorado is already obligated to deliver at the State line to meet its Colorado River Compact obligations. To them, it was irrelevant that the tourist and recreation based industries are among the State's largest and most important industries, and the largest industry on the Western Slope. Rather, the traditionalists' primary concern could be summed up in one word - control. The water buffaloes put up a vigorous, yet ultimately unsuccessful, fight to stop what they believed to be a non - traditional use that they did not control. To counter an unprecedented level of opposition, the proponents engaged in a decade long effort between 1997 and 2006 to protect recreational water rights as a legitimate use of Colorado's water and ensure that such rights were not consigned to second -class status under Colorado water law. As a result of a unique coalition of local governments, recreationalists and environmentalists, recognition of recreational water rights expanded from grudging acceptance of the ability to appropriate just enough water for boat passage (35 cubic feet per second (cfs) in the Ft. Collins case), to high flow decreed water rights of over 1400 cfs in Steamboat and Chaffee County, and finally to statutory recognition in 2006 of the ability to appropriate as much as 50% of the historic average volume in a river channel at a boating structure. This paper begins with the application for recreation water rights filed by the City of Golden in 1998. It turns next to the 2001 legislative enactment of Senate Bill 216 during a break in the Golden trial. The paper then discusses the applications for boating parks by the towns of Vail and Breckenridge, and the ultimate deadlock by the Colorado Supreme Court in reviewing the CWCB's appeal of the Golden, Vail, and Breckenridge decrees, thereby upholding the first large flows for in- channel recreation uses. It then considers the Colorado Supreme Court's decision in Upper Gunnison River Water CLE INTERNATIONAL ■ PAGE K -2 ■ COLORA WATER LAW