You Can Steal My Wife, But You Can't Steal My Water

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[Pi-EVEERT OT-ir2:- +iVrSTxRN SPATF \ Tr A( ENCY deals with- w�ltez_nghts_claitns Iri C.616rad6;:eaeh of the state's seven major watersheds has its bwn water court. Appointed by the chief justice of the Colorado Supreme Court, the water judges each consider between 5o and 350 claims a year. But much of the work is done for them by the water bar, as it is known. "The water lawyers all know each other, and most of the time they're able to resolve their differences," explained C. Dennis Maes, a water court judge in the Arkansas River basin, which includes Col- orado Springs and Pueblo. In the past two years, only three water claims in Maes's district have gone to trial. But there was little chance that Golden's claim would settle out of court. "If Golden had just asked for the minimum amount of water necessary for safe passage [of a kayak through the creek], there might not have been a furor," said Melinda Kassen, water project director for the Colorado chapter of TroutUnlim- ited, an environmental advocacy group. `But they asked for the max. They asked for the roar of the.river." The roar translated into l,000 cubic feet per second, or cfs, during the early summer runoff season. One thousand cfs isn't exactly the torrent of the Missouri River (35,000 cfs), but it's not a flow you'd want to fall into without a life jacket. Environmental groups like Kassen's supported Golden's claim. More water in the river usually means better condi- tions for fish and wildlife. But the towns downstream of Clear Creek balked. The Denver suburbs of Westminster and Arvada worried that Golden's water grab would run them dry. Coors was also alarmed; the company uses the creek's water to cool its brewery equipment. (The water touted for its pure- mountain taste comes from under- ground springs on company property.) Then there were the old mining towns notched between the steep, spruce- covered slopes upstream of Golden. They worried that the kayak course would suck up the water they'd need to become resort towns one day. Handling the case for Golden was Glenn Porzak, an old - school member of the water bar whose clients include Vail Resorts and the American Alpine Club. Over two years, Porzak soothed each naysayer. He convinced Coors and the downstream towns that they would lose no water. He hammered out a deal with the upstream towns in which they agreed to time their water use so that Clear Creek wouldrun low only at night. "In the end, all of the original objectors had gotten out of the case," Porzak said. "Except one! The lone holdout was the Colorado Water Conservation Board. Nine of its ten members are picked by the governor, and they essentially have the power to set state water policy. (The board is separate from the water courts, though it sometimes appears at trials as an objector or friend of the court.) The board feared that Golden would set off a statewide water stampede. Every town with a two -bit stream could roll a boulder into the water, call it a kayak course, and lock up the river's roar forever. In the worst - case scenario, crops would wither and suburbs shrivel so Terry Tucker could spin 36os in his playboat_ "I'm not opposed to mak- ing a buck off the tourists," said Rod Kuharich, the water board's director. "But to sacrifice future water use seemed shortsighted. Golden's application had the potential for a lot of mischief." And as Glenn Porzak guided Golden's claim through the water court, he also helped the Rocky Mountain resort towns of Breck- enridge and Vail, to the west of Denver and Golden, file claims for their own kayak courses. To the south, Pueblo and Gunnison began planning to join them In early 2000, Porzak made one last stab at negotiating with the water board. He opened by repeating his bid for l,000 cubic feet per second. The water board counteroffered 30.One cubic foot of water is a little more than a gallon; the average bathtub holds about 5o gallons of water. The board was offering the flow of a less- than -full bathtub. "That's when I knew we were headed to trial," said Porzak. THE JANUARY 2001 TRIAL TURNED IN PART ON THE MEAN - ing of "beneficial use" Assistant Attorney General Steve Sims argued that in asking for the roar of the river, Golden was mak- ing a claim that wasn't "reasonable or appropriate," as the courts' past interpretation of beneficial use required. But Porzak had powerful evidence that the town would indeed benefit. He pointed to the $800,000 a year that the kayak course, with its high- quality rapids, pumped into Golden. "What are you going to do, argue that recreation isn't important ?" he later said. legala#iais3 51