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Page 1 of 3 The Denver Post Ruling buoys kayakers State stepped over water line, high court says By Theo Stein Denver Post Staff Writer Tuesday, March 15, 2005 - In another victory for whitewater enthusiasts, the Colorado Supreme Court ruled Monday that state officials exceeded their authority in trying to limit water for a Gunnison kayak course. The court, in a unanimous decision, found that the Colorado Water Conservation Board ignored state law and its own rules when it failed to evaluate an application for a water right submitted by course developers and recommended a lower flow instead. The justices ordered a lower court to re- examine the case but instructed the state to comply with a 2- year -old law confirming the right of communities to claim water for boat courses. "Substantively, it is a complete victory for recreational water rights," said Boulder lawyer Glen Porzak, who has litigated many boat - course cases. "The CWCB has been coming in on all these cases saying, 'We think you should have a bunny- sized course,' while local communities are saying, 'We want a world -class course. "' The Gunnison case represents the second consecutive Supreme Court setback for the state in a boat - course case. Two years ago, justices deadlocked 3 -3 on a state appeal of whitewater -park claims by Breckenridge, Vail and Golden, which let stand the trial courts' decisions in those cases. Golden's course now injects an estimated $1.4 million a year into the local economy. While Monday's ruling is seen as a win for recreational boating, the continued legal proceedings could significantly increase the cost of obtaining a water right for the Upper Gunnison Water Conservancy District, the course developer. The group, looking to protect the big water that attracts expert kayakers, had requested varied amounts of water that peaked at about 1,500 cubic feet per second. State water planners only evaluated the impact of a flat 250 cfs decree, which they recommended. COLORADO But that recommendation was overturned during a required water court review. SUPREME COURT State officials appealed to the Supreme Court, which heard arguments in December. Click here for the Colorado Supreme Court website. The challenge was cheered by developers who believe some kayak courses waste water that could be stored in new reservoirs for future residential or municipal use. In her written decision, Justice Nancy Rice said the CWCB "literally ignored the application before it in favor of opining generally on its perception of the appropriate stream flow and a more reasonable recreational experience." Since Colorado's first modern boat course was built on Boulder Creek in the early 1990s, at least 12 more have been constructed, and others are in the works. http: / /www.denverpost.com/cda/article /print /0,1674,36 %257E53 %257E2763030,00.html 3/15/2005