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AROUND THE REGION K ayak park at center of trial By ERIN McINTYRE The Daily Sentinel GUNNISON — A fuzzy law about water rights for recreational purposes forced attor- neys to traverse rapids Monday during the first day of a case battling over water rights for a kayak park on the Gunnison River. The Upper Gunnison River Water Conser- vancy District filed last year for a recreational in- channel diversion, a special water right which requires a certain amount of water to remain in a stream for recreation. After hearings last fall held by the Colorado Water Conservation Board, the state entity with jurisdiction over establishing such a right, the board recommended a 250 cubic foot per second (cfs) recreational in- channel diver- sion for the park. The conservancy district requested flows starting at 570 cfs May 1, rising to a peak of 1500 cfs at the end of June and ending with 270 cfs at the end of the kayaking and rafting sea- son at the close of September. The kayak park, which is not completed but is in use, is down- stream from the twin bridges on the west end of Gunnison. On the first day of a weeklong trial in Judge J. Stephen Patrick's court, counsel with the state Attorney General's Office tried to estab- lish harm to future upstream water develop- ment in the Gunnison River Basin, harm to water - rights holders and harm to the state's ability to meet compact requirements. The conservancy district's lawyers con- tended the 250 cfs was not sufficient to meet the requirements laid out by the legislation establishing recreational in- channel diversions. Senate Bill 216, the legislation authorizing recreational water rights, specifies the water conservation board must consider whether the rights will prevent the state from develop- ing its full compact entitlements and whether they would harm other in- stream water rights. Although the kayak park cannot "call out" senior water rights on the river, such as the Redlands Water and Power Co. and the Un- compahgre Valley Water Users' Gunnison tunnel, a stipulation in the water -right agree- ment would prevent the kayak park from de- manding the water if river levels drop to the point where senior rights - holders could place a call. The law also directs the state to grant the right for the "minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures .. for a reason- able recreation experience in and on the water." State water conservation board members said they felt "constrained" by the statute when they were discussing how much the wa- ter right should be granted for. In the board's Sept. 10, 2002, meeting, mem- bers said they weren't clear on the definition of "reasonable" recreation experience and Seemed frustrated with a lack of facts from the applicant, according to meeting transcripts. "We don't have a factual basis for the actual numbers that were proposed," said board member Carolyn MacIntosh, according to the transcript. Lori Coulter of the Attorney General's Of- fice said the water conservation board relied on the conservancy district's expert testimo- ny at its hearings to make the recommendation. "We haven't seen any real scientific data," Coulter said. Witnesses for the water conservancy dis- trict said 250 cfs is not an adequate amount of water for a "reasonable" recreational experience. Mark Schumacher, owner of Three Rivers Resort & Outfitting, a rafting, fishing and kay- aking business which caters to as many as 15,000 guests in the summer, said 250 cfs doesn't make for great business or water sports. "They don't like 250 (cfs)," he said. "They would prefer the higher flows." Mark Gibson, an assistant professor of rec- reation at Western State College who uses the kayak park as a teaching tool, agreed with Schumacher. He said 650 to 1,500 cfs was suit- able for most skill levels of kayaking. Coulter also accused the water conservancy district of applying for the right to prevent upstream water development, specifically trans -basin diversions. The Union Park project was struck down, but future develop- ment may be possible for the Front Range or even Crested Butte, she argued. Although water conservancy district offi- cials deny that accusation, they admit protect- ing the basin from trans -basin diversions is part of their mission. "I think it's a shame that we're here in the first place," said Kathleen Curry, general manager of the water conservancy district. "And that the state of Colorado took such an extreme position." The conservancy district's attorneys are ex- pected to question the designer of the parr Gary Lacy, today. Testimony also is planned from Jim Lochhead, former state Department of Natural Resources director and representa- tive on the Upper Colorado River Compact, regarding interstate agreements. Attorneys from the state Attorney Gener- al's Office plan to question Ted Kowalski, the water conservation board's legal protection specialist, who helped develop Senate Bill 216. Randy Seaholm, chief of the state's water sup- ply protection division, will also take the stand. Also speaking will be a hydrology ex- pert on compact requirements for the Attor- ney General's Office and another water -flow expert who specializes in kayak park design.