Recreational Water Rights

Kayak Park Bill hits floor of Colorado Senate

By Bob Berwyn, 3-23-06

With meager runoff the past few years, my runs down the lower Blue River, north of Silverthorne, more often than not ended up with my kayak shoaled out in the shallows, stuck in the mud. That's about where the Colorado State Legislature appears to be with its latest effort to define Recreational In-Channel Diversions (RICDs), those stream flows sought by towns to sustain whitewater kayak parks.

Like a water fight among rafters, boaters and traditional water users - developers, ranchers, cities and farmers - are circling each other and splashing the river with their political paddles. If they find a compromise, it could help establish some certainty for how those recreational water rights are claimed and administered.

But the bill that's up for discussion on the Senate floor this week would create a second class water right under Colorado's first-in-time, first-in-right doctrine, as The Mountain Mail in Salida reported March 20.

At issue is the ability of towns to claim river flows for kayak play areas. Existing state law includes provisions for such facilities, but in a case involving a whitewater park in Gunnison, the Colorado Supreme Court said the rules are still a bit murky, essentially sending the issue back to the Legislature.

Some lawmakers are trying to put limits on recreational rights, including a “90-percent” provision, under which the recreational flow rights would only be valid if at least 90 percent of the claimed water is available in the stream. Other language limits the use of water solely to kayak parks, which presumably leaves out other types of recreational uses (angling, for example) that might otherwise be covered under the measure.

“The only thing a new bill is going to so is create a second-class water right,” said Shanna Koenig, representing the Northwest Colorado Council of Governments in the negotiations. Many West Slope towns oppose the restrictive language, she said.

“We oppose having legislation altogether,” she added, explaining that existing laws, court rulings and administrative measures provide an adequate framework for managing recreational water rights. At the same time, Koening said the stakeholders she represents are negotiating in good faith to come up with an acceptable compromise.

Summit County Commissioner Tom Long also has some issues with the current bill – and with recreational in-channel diversions in general.

“Personally, I’m not fond of them (RICDs),” Long said. “You’ve got to understand them for what they are,” he said, characterizing the recreational flows as a potential tool for controlling water use downstream.

“But I’ve always supported them based on the interests of the community,” he added, explaining that kayak parks seem to have become a "must-have” amenity for many recreation-oriented resort towns. Long, known for his insight into state water issues, doesn’t like the current RICD bill because it threatens the status quo of Colorado’s water law.

Denver Water is one of the entities supporting the current measure, and according to intergovernmental affairs coordinator Sara Duncan, it’s the recreational users that have been intransigent on this issue, refusing to accept any reasonable limitations on their ability to claim in-channel diversions for whitewater parks.

“I don’t have much to add to the furor and storm,” said Duncan, who lobbies the State Legislature on behalf of Denver Water. “But I think it would be good to make the RICD definition clear.”

Duncan said some of the language that’s perceived as restrictive is aimed at integrating recreational water claims into the prior appropriation scheme used to allocate water all around the arid West.

“No one is trying to put the kibbosh on future RICDs,” she said. “We want to make sure those water rights are measurable to the extent of its use, just like any other water right.”

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