Recreational water rights

City of Durango Seeks Water and Gets a Fight

By Ken Wright, 2-28-06

In most places, water is for swimming, for drinking, for growing crops, for keeping the grass green and the flowers pretty. In Colorado, though, it’s also for fighting. This is the lesson the City of Durango is in for as it joins several other municipalities in the state looking to set aside a water right to guarantee in-town river recreation.

Following a vote by the city council last week to create a boat park on the Animas River, the city decided it will apply to a local water court to have recreational in-stream water rights adjudicated to maintain flows through the park. The city is seeking to be assured 1,400 cfs in flows during June’s high water, and 185 cfs in low-water seasons.

The city’s application will be met with resistance, though. The Southwestern Water Conservation District has warned that it is ready to engage in an expensive legal battle to block the rights, which it says would harm upstream users who now use river water without court-assigned rights, and would hinder future development in the Animas Valley upstream of the town.

Under the Colorado state constitution, water rights are granted for “beneficial uses� in a “first in time, first in right� fashion. Water rights are awarded through a system of seven water courts, one for each major basin in the state. Applications for water rights can be challenged for 45 days, and a “water referee� settles the disputes.

Historically “beneficial use� meant the water must be diverted and developed for the water right to remain valid. Since 1973, though, the state has recognized some in-stream flows as water rights for environmental protection. In 2001, in a nod to the growing economic value of recreational boating and fishing, the Colorado legislature expanded the legal definition of “beneficial uses� to include “the diversion of water by [some local government agencies] for recreational in-channel diversion purposes.� These in-stream rights are held by the Colorado Water Conservation Board for the governmental applicants; and, unlike other water rights, which can be bought, sold, and inherited like property, the Board cannot acquire senior water rights.

Several cities, including Gunnison, Golden, and Steamboat Springs, have pursued such rights. The law, though, is presently under assault in the legislature by the Durango-area's own state representative. Sen. Jim Isgar, D-Hesperus, is sponsoring Senate Bill 37, which would limit receational water to only kayaking flows, not flows that would allow rafting. It would also award senior status to future water-rights applications.

In Durango, if the water rights are won, the city intends to spend $500,000 creating the boat park at Smelter Rapids, alongside Santa Rita Park, on the south side of town at the foot of Smelter Mountain. The park is already the site of the largest rapid on this stretch of the Animas River, and features a kayak slalom course and bleachers for boat-racing fans. Several races are already held each year at the site, and in June the city holds the popular Animas River Days, which features races in the river and festivals in the park. The boat park plan would improve these amenities and create several hydraulic features for kayaks, canoes, and rafts. This section of the Animas River is also popular for private and commercial rafting.

Southwestern Water Conservation District officials expressed hope last week that an out-of-court settlement can be reached with the city to avoid a legal battle. The city, though, in announcing its intentions, rejected six months-worth of negotiated compromise language for the rights that, according the Durango Herald, would have protected upstream water users who didn’t have water rights.

Let the water wars begin.

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