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< January February 2004
	ECO
Farming for Parks Court validates recreation water rights in Colorado

In a legal sense, river runners in the West have always been water scavengers, surfing what’s left after farmers, factories and subdivisions take their legally allotted share. Now, thanks to a potentially precedent-setting court victory, Colorado boaters own a piece of the water allocation pie. After a five-year fight, the towns of Vail, Breckenridge and Golden have won water rights for their whitewater kayak courses. In May, the Colorado Supreme Court let stand lower court rulings that gave the towns the rights to peak flows between May and July each year, making Colorado only the third Western state (behind Oregon and Montana) to recognize “in-stream” water rights for recreation. “This is a recognition that recreation rights are just like any other water right,” says attorney Glenn Porzak, who represented the towns. “The day is long gone when we have to remove water from the stream for it to count as ‘beneficial use.’”

Under Colorado law, water rights are typically tied to diversions—if you show you can siphon water from a stream and put it to good use, it’s yours. The towns turned that concept on its head by successfully arguing that widening and deepening the streambed and adding strategically placed boulders modified the flow enough for the kayak courses to qualify as "in-stream" diversions. Porzak predicts the court’s legal validation of recreation rights is likely to unleash a deluge of similar claims. "I think the foot’s in the door," he says.

Scott Ritter, a manager and kayaking instructor at Vail’s Alpine Canoe and Kayak, says paddlers have just as much of a right to the river as any other water user. "I definitely think the river's there for everybody to share, and I think it's important to the sport to have these recreation parks," he says. But traditional water users—who benefit from taking water out of the river—say leaving the wet stuff in the river for recreation could hurt farmers and industry, especially in drought years. "This has the potential to lock water into the stream," making it less available for future claims, says the Colorado Farm Bureau’s Ray Christensen. And with Colorado’s population expected to balloon by a million people in the next 10 years, there’s also concern that preserving in-stream flows will hinder future efforts to meet the increasing water demand.

But in the end, economics rule. While irrigation accounts for 94 percent of consumptive water use in Colorado, recreation has become the state’s economic engine, Porzak notes. That means the farming industry likely will have to loosen its grip on the spigot as river rats vie for some paddling room—another spasm of growing pains as the New West eclipses the Old West. "Pure economics tell you that there’s no way to derail this train," Porzak says. "The bottom line is, the greater the flow, the greater the dough for the state as a whole."

—April Reese