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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

Browse articles and find a flipbook of the magazine here.

Connecting the Drops

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Water Education Colorado

Legal Brief—Water Rights for Recreation

Like to kayak? Pay attention. Worried the state doesn't have enough water storage to supply our enlarging population? Pay attention.

The Colorado Supreme Court just released a ruling on a case critical to deciding how much water will be allowed to flow through Colorado's whitewater parks, and how these water rights may affect future upstream water development (e.g, construction of reservoirs).

Some praise the decision as a ‘complete win’ for recreation, while others are reassured that it reinforced the requirement for whitewater courses to only get the minimum amount of water necessary for a reasonable recreational experience.

In the late 1990s, as the popularity of whitewater parks increased, local cities and water districts began applying for water rights to support river flows through their parks. In 2001, the state passed legislation defining and setting boundaries for these water rights. They called them ‘recreational in-channel diversions (RICD).’

This newly created type of water right, by statute, allows only the minimum amount of water necessary for a ‘reasonable recreational experience.’

The Colorado Water Conservation Board (the state's water-policy making agency) is required to review and make recommendations to the regional water courts regarding all applications for these water rights.

After the 2001 law passed, applications for recreational water rights for cities around the state—Gunnison, Longmont, Steamboat, Pueblo—began filing into water court.

The first case to be decided under the new law was an application by the City of Gunnison to secure rights for a kayak course in the Gunnison River.

The city requested a range of flows from May through September, with peak flows of 1,500 cubic feet per second (cfs) in June. These variable flows totaled more than 157,000 acre-feet annually (more water than is contained in Horsetooth Reservoir near Fort Collins, for example). These flows also constituted more than 41 percent of the Gunnison River's available stream flow each year.

By contrast, the CWCB recommended that Gunnison be allowed only steady flows of 250 cfs from May through September. When the water court approved Gunnison's flows as requested, opposers including the State Engineer's Office, CWCB and others, instantly appealed the case.

In the Colorado Supreme Court's decision released in mid-March, the court found that both the CWCB and the water court erred in this case. According to the court's opinion, the CWCB failed to evaluate the flows requested in Gunnison's application. Instead, the CWCB ‘literally ignored the application before it in favor of opining generally on its perception of the appropriate stream flow and more reasonable recreational experience.’

The court's opinion also went on to further interpret the language of the 2001 law, stating that it does not give the CWCB authority ‘to dictate a flow rate or recreation experience for RICD water rights.’ The court stated the CWCB does have authority to evaluate the application against five major concerns (see CWCB Review, p.20). If the CWCB finds that the application for example, does not promote maximum utilization of the state's waters or impairs fulfillment of Colorado's interstate water agreements, it can recommend the water court deny the application.

Further, the court found that the CWCB did not supply the water court with sufficient analysis of the Gunnison application—considering the five major concerns cited in the 2001 RICD law—therefore the court wasn't able to do a complete job of evaluating the application, as required.

Ambiguous language in the 2001 legislation did not aid matters. Much debate revolves around what constitutes the ‘minimum stream flow’ for a ‘reasonable recreational experience.’ Ask whitewater course designer Gary Lacy what is reasonable, and he is quick to respond that it depends on the purpose of the park itself.

‘If the community wants to create a world-class whitewater park for freestyle boating, the purpose is big dynamic water features. Generally that requires significantly more water than what the state considers 'reasonable.' But if they just want something you can float a boat down, with no attraction for visitors, then that is an entirely different proposition.’

The court also agreed that a ‘reasonable recreational experience in and on the water’ involves an undetermined amount of water that ‘will vary from application to application depending on the stream involved, and the availability of the water within the basin.’ Deciding the minimum amount necessary will involve hearing conflicting expert testimony, including CWCB recommendations.

So it's back to the drawing board. The CWCB must provide another set of recommendations for the Gunnison application, and the case will be sent back to water court for further interpretation. The size of the waves in future Colorado whitewater parks has not yet been decided.

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