After two years spent riding legislative waves, Colorado boaters can look forward to hitting the waters they love.
In May, Gov. Bill Owens signed legislation to quell a raging debate over recreational water rights for boating and kayak parks. The law, a compromise between two passionate groups, is meant to accommodate the growing number of water enthusiasts while preserving the water needed by traditional users.
There is a wild card in all this for paddlers, however, and it's the one Colorado always seems to deal with: a given year's rain and snowfall.
"In dry years, there might not be any [recreational] rights," and, therefore, fewer kayak parks in operation, says Drew Peternell, director of Trout Unlimited's Colorado Water Project.
No fewer than 15 Colorado communities have built kayak parks in the last 15 years, reflecting a swell of interest in outdoor recreation and river running. Pueblo, Salida, Buena Vista, Breckenridge and Denver are among the cities now boasting manmade runs. A 2002 study reported that 4 percent of Coloradans more than 136,000 people went kayaking in the state that year, in addition to thousands more paddlers who visited from out of state.
But setting up a boating and kayak park hasn't been as easy as just designing some rapids with playfully ferocious monikers. Western water law is based on the premise of "use it or lose it," and creating burly rapids or beaucoup trout habitat hasn't been recognized as being of any "beneficial" use.
"One hundred years ago [when water law was codified], it was all about agriculture," says Tony Keenan, board member of the Arkansas River Outfitters Association and owner of Whitewater Adventure Outfitters in Cañon City. "Nobody anticipated recreation or tourism might be so big. No one said, "Gee, someone might want to kayak this river.'"
Old water vs. new water
Commercial boating now brings about $130 million a year into Colorado, says Keenan, and the Arkansas generates half of that money a major boon for Chaffee County. Golden estimates its single kayak park rakes in at least $1.2 million annually for the city and its businesses.
Through a 1992 state Supreme Court decision, Colorado became the first Western state to recognize recreational in-channel diversions, or RICDs, for kayak parks as valid uses of water. Nine years later, the state Legislature established that only local governments could claim these new-fangled water rights, and that they had to be restricted to the minimum amount necessary for a "reasonable recreation experience."
Even with such restrictions, this development alarmed traditional water users, including agricultural conservancy districts and utility companies such as Denver Water and Aurora Water. The organizations resisted the change to water law, citing worries that RICDs might limit future water development and exchanges meant to quench the thirst of the ever-growing Front Range.
"We support recreational [water] usage as long as it does not interfere with traditional uses, like commercial, industrial and agricultural use," says Steve Berry, a spokesman for Colorado Springs Utilities, which has remained relatively neutral on the issue as compared to the heavy hitters of the northern Front Range.
Last year, these forces united to introduce legislation that would have severely limited RICDs by capping any recreational water claims at an arbitrary minimum flow. Recreational and conservation interests convinced legislators to sink the measure by one vote setting the stage for this year's eventual compromise.
The new law will not regulate existing RICDs. That protects governments like those in Pueblo, which opened a kayak park last year, and Chaffee County, which is finalizing its RICD agreement to guarantee water for its parks in Salida and Buena Vista.
But new parks will face numerous restrictions that some critics say amount to "second-class water rights."
The law states that if local governments need more than half a stream's average historic volume to maintain a boating run, they face a "call threshold." These cities and counties would get no water for their kayak parks during years when less than 85 percent of the claim could be fulfilled.
"The intent is to try and force public entities to claim less water [for kayak parks and boating runs] in order to avoid the draconian call threshold," says Steve Bushong, a Boulder-based lawyer who represents Chaffee County and other local governments.
The legislation could affect kayak parks in Denver, Boulder, Lyons and Glenwood Springs, among others that have not yet secured their claims. Opponents also refused to extend recreational water rights for fishing runs, which they saw as a veiled attempt to create instream flow rights to leave water in the river.
Members of the boating and environmental communities are calling the final law a livable compromise, but some also recognize the irony of growing cities that are unwilling to share the flows.
"People in Denver and Colorado Springs like to go rafting," says Keenan, the Arkansas River outfitter, "but growth in those cities is sucking water from the Arkansas. The more the river is de-watered by the big utilities, the less "reasonable recreation' we can expect in the future."