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Water fight: Kayak parks battle for flows

Bob Berwin
Summit County correspondent
A kayaker paddles through a man-made rapid last spring in the Breckenridge Kayak Park. (Summit Daily file)
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The latest effort by state lawmakers to define recreational in-channel diversions (RICDs) may founder in the whitewater of Colorado politics, as recreational stakeholders in mountain communities tangle with traditional water users, including Front Range cities, as well as ranchers and farmers.

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.

So for now, many of the claims for recreational flows end up in court. Coming up with a legislative solution could give everyone some sense of certainty as to how those flows are to be administered. In some cases, towns may end up spending more to defend their water right in court than on the actual construction of a whitewater park.

Based on the Supreme Court ruling in the Gunnison case, the Legislature tried, but failed, to create a statutory definition for RICDs in its last session. This year’s version has passed out of committee, but has yet to advance to the Senate floor. Currently, the various stakeholders are negotiating specific language in the bill that, according to critics, would establish kayak park stream flows as “second-class” water rights.

That includes 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,” said Shanna Koenig, representing the Northwest Colorado Council of Government’s Water Quantity and Quality committee in the negotiations. 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 do is create a second-class water right,” Koenig said,” explaining that many West Slope towns oppose the restrictive language.

“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, Koenig 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 doesn’t like the current RICD bill because of the restrictive language that put limits on water rights and 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 Doctrine of Prior Appropriation, the “First in Time, First in Right” system that is fundamental to how water rights are appropriated in Colorado.

“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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