New river law boosts recreation

New river law boosts recreation

Oct 20, 2001

By Jim Mimiaga
Journal Staff Writer

A new river-use law gives the Colorado boating community unprecedented legal muscle to protect coveted whitewater flows during spring runoff.

But controversy over how much oversight the Colorado Water Conservation Board should have over high-flow rights filed for boating purposes has been stewing at a series of public hearings that ended in Cortez this month.

Under revised statutes passed by the Legislature this summer, government entities, such as municipalities and counties, can apply for a "recreational in-channel diversion" right on stretches of rivers popular with rafters and kayakers.

The new law signed by Gov. Bill Owens follows a state water-court ruling that upheld recreational rights for the Poudre River in Fort Collins and on Clear Creek in Golden. Those cases, and the new law, represent a watershed moment for recreational boaters, because it recognizes for the first time water claims for non-consumptive uses.

"I consider this a fundamental change in Colorado water law," said Don Schwindt, a CWCB board member. "The public has said this is what they want and I’d guess that in the next 5-10 years you will see these rights utilized in places where they are appropriate."

Under the revised statutes, the CWCB reviews recreational-water-right requests to ensure the claim does not threaten other water users and that the river in question offers a reasonable recreation experience with good access. The board then makes a recommendation to approve or deny the claim to the state water court, which ultimately rules on its legitimacy.

But at a series of hearings across the state, the boating community was critical of the board’s interpreted role in the process, arguing that their proposed rules for review of recreational water claims went beyond the law’s requirements.

"The process should not be so onerous that it dissuades a town or county from applying for these kinds of water rights," said Mark Pearson, a rafting-flows advocate with the San Juan Citizens Alliance in Durango. "The initial draft was incredibly complicated."

Boaters worried that the CWCB was positioning itself to stymie those requests by making the process too cumbersome. CWCB members say they will support the new law but note they have a responsibility to protect the state’s future water demands.

But a compromise was struck after feedback at the hearings and the water board scaled back its wording of what the applicant needs to provide.

A more formal rule-making process is now under way, "and I think the board realizes that they must look into their crystal ball regarding future water use, but that is not incumbent on the applicant," Pearson said.

"Now a lot of the information will not be a requirement," Schwindt said. "But we still recommend that it be provided because we need the data to determine the claims impacts on river compacts."

He added that the law was needed because it keeps the CWCB in the loop regarding Colorado water regulation. Previous recreational filings went straight to water court, prompting the new law involving the board.

It is not clear whether the San Juan, Dolores, or Animas rivers may be good applicants for a recreational water right, but observers say it may be possible.

The new law specifically protects junior and senior water rights, but allows for the state’s huge amount of unallocated water to be legally claimed by a city, town, county, water or sanitation district for boating purposes.

"I would think that the Animas River may be a good candidate for Durango to apply for because it already has an established kayaking course," Pearson suggested.

Carolyn Dunmire of the Dolores River Action Group said it could be a tool to help establish more consistent rafting flows above and below McPhee Reservoir.

"Anything to get more water into the lower Dolores Canyon is needed," Dunmire said. "It is a real shame that such a scenic canyon cannot receive minimal rafting flows, which we believe benefits the community just as much as agriculture does."

One issue still being debated is what constitutes an "in-channel diversion." Under Colorado water law, allocated water must be put to "beneficial use" by a diversion, which includes removing water, or "controlling water in its natural course or location" (i.e., with a ditch, flume, canal, dam, reservoir, bypass, pipeline, or other structure or device).

The city of Golden successfully "diverted" Clear Creek by installing an in-channel concrete flume above a world-class rapid run. The interpretation was ruled a legitimate claim by the water courts, which decreed the 1,000 cubic-feet-per-second amount. The decision is being appealed.

On the Animas River, kayak enthusiasts maneuver boulders to maximize whitewater thrills on the infamous Smelter Rapid. Such a diversion may qualify under the rules, supporters hope, and if so help to preserve the future of the rafting industry in the face of increased water demand for upstream subdivisions and statewide growth.

The law’s initial intent was to provide for diversion structures such as canals and dams for agriculture and domestic water supplies. But claims are now being expanded to more fairly include non-consumptive demands, explained Tom Klema, a commercial rafting outfitter and executive director of the Colorado Water Policy Institute.

"We are making headway on broadening rights for recreational users," Klema said. "It makes sense to take the beneficial-use concept of water to a more new-West inclusive value.

"And doing so does not preclude consumptive-use values, but what an incredible argument to say that the more water stays in the stream the more diverse and greater its benefits, whether it be for rafting, fish habitat or for other downstream users."