Recreation Water Rights - "The Inside Story"

Home Browse Search

Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. With its opening argument at the Water Court trial, Golden suggested that if it had built a hydropower project on the banks of Clear Creek and sought a 1,000 cfs flow rate, the State would not have filed its opposition. Golden noted there were only two differences between its boating park water right and a more "traditional" hydropower right. First, the recreation rights would not dewater the stream. Second, the kayak course generated more revenue for the City than a hydropower plant. Testifying on behalf of Golden, Dr. Robert Raucher conservatively estimated the present and future value of Golden's whitewater course to be $23 million. 16 On the issue of intent, Golden's director of Public Utilities, Dan Hartman, testified that the City wanted to develop a "world- class" facility to draw people into the area, revitalize the downtown, and maximize the economic benefits to the City. Gary Lacy, the designer of the course and an expert engineer and kayaker, explained the structures in the boating park, their function and hydraulics, and their optimum design capacity of 1,000 cfs. Various business owners testified about the importance of the boating park to the local economy. Dr. Jeris Danielson, the former State Engineer, further explained how the structures controlled the amount of water claimed, and offered his expert opinion that Golden's water rights were administrable by the State Engineer's Office and that Golden's claim met the requirements of a traditional Colorado water right appropriation. The State based a great deal of its opposition to the Golden claim on the testimony of its outside "boating expert," Dr. Bo Shelby, a sociologist from Oregon with experience in quantifying the needs of boaters in the context of decisions about dam and hydropower operations. Dr. Shelby supervised a survey of boaters that had used the Golden boating park, and offered his opinion that the Golden claim was excessive. 17 While seriously questioning the value of the opinion testimony the State's outside expert offered, Golden did not object to the raw data he had collected in the surveys on course use. In fact, the survey information was ultimately helpful to the Court in determining the extent of beneficial use. The survey demonstrated that the boating park was beneficially used at flows of 1,000 cfs and greater, and was extensively used throughout the year. Among other findings, the State's collected data showed the mean user in the sample had used the course 100 times, and traveled 47 miles from home to get there. The survey also demonstrated that many kayakers had used, or would like to use the boating park at night. One survey respondent commented that the Golden boating park was "among the best courses anywhere." Another said, "If there were lights, there would be folks there all night long." E. Break in the Golden Trial and Attempted Emergency Legislative Override. The first phase of the trial ended on March 15, 2001. At that time, it was scheduled to continue for one additional day on May 10, 2001. During this break in the trial, the CWCB drafted a bill that became Senate Bill 216, regarding what have come to be called "recreational in- channel diversions" ( "RICDs "). Ordinarily, bills cannot be introduced into the Colorado General Assembly at such a late point in the legislative session. Nevertheless, SB 216 gained late -bill status from legislators sympathetic to the CWCB's traditional view of water rights. As originally proposed by the CWCB, the bill would 16 The analysis upon which Dr. Raucher based his testimony is found in Rauscher et al., Preliminary Evaluation of the Beneficial Value of Waters Diverted in the Clear Creek Whitewater Park in the City of Golden, Dec. 7, 2000. 17 A subsequent Colorado Open Records Act request revealed that the CWCB paid Dr. Shelby $80,000 for his work in opposing the Golden claim at a rate of $385 per hour. CLE INTERNATIONAL ■ PAGE K -7 ■ COLORADO WATER LAW