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Should river towns be forced to build costly parks to get recreational water rights?

Nonprofit argues communities should be able to protect rapids without building features
John Brennan of the Animas River Task Force, who has been involved with the Durango Whitewater Park since the beginning, tackles waves at the park July 2015. (Durango Herald file)

American Whitewater floated a plan last year to expand protections for recreational river flows in Colorado. Maybe, the nonprofit protector of rivers thought, communities should not need to build whitewater parks to secure rights for recreational flows.

“It definitely, you know, got some ears perked,” said Hattie Johnson, American Whitewater’s southern Rockies stewardship director.

Colorado officially recognized recreation in a river as a beneficial use of water in 2001, enabling riverside communities to file for water rights to support whitewater parks. Those recreational in-channel diversion water rights, or RICDs, set a minimal stream flow between structures to support “a reasonable recreation experience.”

In the 20 years since the creation of RICDs and further legislation in 2006, Colorado communities have built dozens of whitewater parks, with 13 of them using RICD water rights. Some parks have delivered lasting economic benefits to riverside communities. But there hasn’t been a new RICD filing since 2013, when Glenwood Springs proposed three whitewater parks and found itself locked in Colorado water court for more than a year.

“There was a nice big boom and it’s kind of eddied out, but there are still plenty of recreational resources around the state that are worthy of legal protection of flows that provide that recreational opportunity,” Johnson said.

The nonprofit river conservation group American Whitewater is advancing a plan that structures in the river are not necessary for river recreation and communities should be able to file for RICD water rights without expensively engineered features that create waves and holes for kayaking, rafting and stand-up paddling. While there are 13 official RICD water rights in the state, there are more than 130 stretches of whitewater that can be rafted, kayaked and stand-up paddled in the state.

“The RICD statute identifies a very narrow economic benefit of recreation,” Johnson said. “Our goal is to talk with the water-user community and figure out a solution that identifies all the uses taking place on the river, not just in whitewater parks.”

A dedication ceremony for the completion of Durango’s Whitewater Park was held in September 2017. Thomas Wilt is seen kayaking in the park. (BCI Media)

Early talks with Colorado’s sharp-elbowed water community have not gone well. No lawmaker took up American Whitewater’s proposed legislation, which has been scrapped. And opposition to a plan that expands recreational protection of water is stiff.

The gist of opposition, which was voiced earlier this month at the meeting of the statehouse Water Resources Review Committee, is this: If any community can file for RICD water rights without actually building anything in the river, the expansion of those recreational rights could muddy Colorado’s already complicated water dealing.

“Our concerns include a proliferation of RICDs that could complicate water rights administration and operations,” Denver Water spokesman Todd Hartman said.

Denver Water met with American Whitewater, where the powerful water utility expressed concerns about how changes to the RICD statute might “impact previous, hard-won agreements” that allowed recreational water rights, Hartman said. There is a lot of water trading that goes on in Colorado as the state’s water users navigate senior and junior water rights while meeting regional requirements to deliver Colorado River water to downstream users in Arizona, Nevada, California and Mexico.

“Reopening the statute to loosen it would probably make for a significant undertaking,” Hartman said.

American Whitewater is adjusting its plan to accommodate flexible exchanges of water and what Johnson called “creative water management we are going to need in a hotter, drier future.”

“Having larger decrees for in-stream flows for recreation would make that really difficult and prevent it when it would be needed to deliver water to people’s homes and fields,” she said. “That is understandable.”

While old-guard water users may be chafing at a plan to expand recreational water rights, they are not dismissing recreation as an invalid use of Colorado’s water.

“Recreational water use and recreational enjoyment of the state’s waters are integral to Western Colorado’s lifestyle and economy,” said Zane Kessler, the head of government relations for the Colorado River Water Conservation District, adding that the current RICD water laws in Colorado “provide a good amount of flexibility.”

Significant work has been done over the years to build and maintain features that create waves and holes for kayaking, rafting and stand-up paddling in Durango’s Whitewater Park. (Durango Herald file)

Kessler said the 15-county Western Slope river district “is sympathetic to the goals of American Whitewater,” but he wonders about the necessity of amending Colorado water law to allow communities like Craig and Sterling and Del Norte to increase the recreational appeal of their riverfront land.

The river district’s policy, he said, says that a RICD should not be granted if it would “materially impair” Colorado’s ability to meet its water delivery obligations under the Colorado River Compact agreements of 1922 and 1948. Colorado is part of a coalition of upper basin states – with New Mexico, Wyoming and Utah – that must deliver 7.5 million acre feet of Colorado River water to lower basin states as part of a nearly century-old agreement allocating river water that now supports some 40 million users.

“Like all water rights, water rights for recreational uses should be reasonably efficient and promote maximum utilization of Colorado’s waters,” Kessler said.

Johnson said American Whitewater will continue talks with Colorado water users about how communities can protect recreational flows without having to build whitewater features. The group hopes to craft an amendment to the state’s recreational water rights rules that will both protect recreational use of river water while preventing a flood of applications for RICD water rights.

“There is some wiggle room here. I see a path forward,” said Johnson, who will meet with more communities around the state that are interested in protecting flows for recreational use. “We just need to get everybody in one room and talk about it for a while.”

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.