Kayak park water rights study proposed
February 6, 2007
SUMMIT COUNTY ” The issue of recreational water rights for kayak parks and other in-channel uses just won’t go away.
In the latest twist, the Colorado Water Conservation Board (CWCB) is seeking $150,000 from the state Legislature to study the recreational in-channel diversions, also known as RICDs in shorthand water parlance.
The bill is set for a hearing this week, and while critics of the proposed study say taxpayers shouldn’t foot the bill for a “whitewash” study that won’t be subject to rigorous scrutiny, the CWCB’s Ted Kowalski said the intent is to try and find ways to establish objective criteria for recreational water uses.
At issue once again is the ability of towns like Breckenridge, Silverthorne, Golden and Vail to claim river flows for whitewater kayak parks, and how those water rights may affect upstream users. A series of court rulings and state laws during recent years have provided an outline, but perhaps not definitive guidance as to how much water towns can claim ” or how much they need ” for such facilities.
Kowalski, the CWCB’s RICD coordinator, hopes if the study is approved, the process will include buy-in from recreational groups and other water users. He said charges that the study is intended to short-circuit existing guidance are unfounded.
“I think we could find common ground and agree on language … and get away from looking at these on a case-by-case basis,” Kowalski said, adding that the idea is to get a big-picture, policy level look at the issue.
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Agreeing on some ground rules could save taxpayers money in the long run, by preventing applications for recreational water rights from ending up in a long, drawn-out court battle, as has happened in several cases, notably in Gunnison.
“There should be some commonalities we can agree on without arguing each and every one in court,” Kowalski said.
Additionally, Kowalski said a second part of the study is aimed at taking a look at whether the exercise of some of the existing recreational water rights have had any impact on upstream water users. It’s not clear exactly if, or how often, the exercise of those rights has resulted in curtailment of an upstream water right, he said, explaining that such information would be useful to the CWCB in its administration of stream flows.
“This is a wolf in sheep’s clothing,” said attorney Glenn Porzak, who has represented mountain communities like Breckenridge on recreational water rights issues. Porzak said existing court rulings and legislation provide all the guidance needed to administer the recreational flows.
In a set of talking points issued to bolster the argument against the CWCB study, Porzak’s law firm claims the CWCB has demonstrated a “huge bias” against recreational flows by opposing every RICD claim.
Last year’s Senate Bill 37 on recreational flows limited the CWCB’s authority over the flows, and Porzak said the latest study proposal is directly at odds with the legislation. By “undermining the comity and compromise struck in the last legislative session,” the latest bill could spark another legislative battle, Porzak said.
According to Porzak, the CWCB has no role in determining the “reasonableness” of flow rates. Under SB 37, that authority is specifically reserved to the water court, and each case must be looked at individually.
“This new funding request is more of the continuing effort by the CWCB to spend public funds to develop another report that will be used to oppose the efforts of local governments to obtain RICDs,” Porzak’s firm wrote in its memo.