Three conservation groups aiming to keep more water in rivers for recreation are working on a revision to a state law.
American Whitewater, Conservation Colorado and Western Resource Advocates are proposing an amendment to legislation that would allow natural river features such as waves and rapids to get a water right. Under the state’s current statute, in order to get what is known as a recreational in-channel diversion water right, it must be tied to a man-made structure in the river, such as a design feature that creates the waves in many kayak parks.
Pitkin County Healthy Rivers is supportive of amending the existing statute to include natural river features and said so in an April letter to legislators.
“I think it’s kind of ironic that you have to make a man-made engineered structure in a river to make it somehow be of value to have a water right,” said Healthy Rivers board member and boater Andre Wille. “It would be nice to not have to put a structure in the river.”
According to numbers provided by the Department of Water Resources, there are currently 21 recreational in-channel diversion, or RICD, water rights in the state, all of them tied to an artificial structure. In the Colorado River basin, that includes features in Vail, Silverthorne, Aspen and Avon. Glenwood Springs has an approved RICD for a series of waves. Durango, Steamboat Springs, Salida, Buena Vista and Golden also have whitewater features with RICDs.
This type of water right ties an amount of water necessary for a reasonable recreational experience to the man-made river features.
Hattie Johnson, southern Rockies stewardship director of American Whitewater, likens making the acquisition of water rights dependent on the creation of an artificial feature to protecting backcountry skiing by building a ski jump.
“Right now, we can only protect water in the river for recreation if we build a ski jump,” she said. “So, we are looking for a change that protects the resource to provide all the wide-ranging recreational activities that happen on the river.”
Hawaii Five-0 wave
Proponents aim to tie a water right to a specific naturally occurring river feature, instead of a stretch of river — for example, the wave known as Hawaii Five-0 in the lower reaches of the run that begins with Slaughterhouse Falls on the Roaring Fork, instead of the entire 4.5-mile section of rapids. Slaughterhouse is a whitewater reach that begins at Henry Stein Park in Aspen and ends at Wilton Jaffee Park downstream in Woody Creek. It is a popular after-work run with kayakers and commercial rafting companies. Its many fishing holes also attract anglers.
A water right at Hawaii Five-0 could help keep water in the river for most of this section, since it’s located about a half-mile upstream of the take-out at Jaffee Park.
Scotty Gibsone has been running this section of river for 26 years and is on it nearly every day in the summer. His rafting company, Kiwi Adventure Ko, takes paddlers down the Class IV rapids of Slaughterhouse and the Class III Toothache section on the Roaring Fork in Snowmass Canyon. He said the Slaughterhouse season is short; it’s not usually runnable in boats after July 4. He can sometimes eke out a few more weeks using tubes in low water, but he would like to see higher flows overall.
“More water is always going to help, especially for us in the tourism sector,” he said.
Most RICD water rights are held by municipalities — cities, towns and counties — and many have encountered opposition in water court. When Pitkin County began the process of securing an RICD for the two waves in the Basalt park on the Roaring Fork, Southeastern Colorado Water Conservancy District and Twin Lakes Reservoir and Canal Company, two entities that take water from the basin’s headwaters over to the Front Range, opposed the water right.
There will probably be opposition from Front Range water providers to any amended state legislation. That is because an RICD could limit their ability to develop more water from the Western Slope in the future.
American Whitewater has met with representatives from Denver Water, Northern Water and Aurora Water to discuss the legislation.
“We did inform them that we believe there will be significant opposition to the proposal, but Aurora Water would need a draft and go through our process to determine our position,” Greg Baker, manager of public relations for the city of Aurora, said in an email. “There is great potential for unintended consequences from even a modest proposal.”
To appease its opposers, Pitkin County agreed to a “carve out” provision that allowed up to 3,000 acre-feet of new water rights to be developed upstream of the kayak park, without being subject to the county’s new water right. (An acre-foot equals about 326,000 gallons, or enough water to cover an acre 1 foot deep.)
Growing recreation sector
A growing recognition of the importance of the outdoor recreation economy to the Western Slope is driving proponents’ push for updating the RICD legislation. And as climate change continues to rob western Colorado of streamflows, there is an increasing sense of urgency to protect and maintain water for recreation into the future.
“What we are trying to do is say that recreation is part of this complex system and we need to take that type of use into consideration,” said Josh Kuhn, water advocate for Conservation Colorado. “When we think about the transitioning economy, especially on the Western Slope, we need to have the security that this economic driver is going to be there in the future.”
Proponents say an amended law would also open up the possibility of RICD water rights to river runners in less-wealthy areas. Rearranging a streambed to create an artificial wave can be problematic: It is expensive, it requires disturbing the river ecosystem with heavy equipment, and engineers don’t always get it right the first time. For example, Pitkin County has spent nearly $3.5 million on the Basalt waves. The county had to reengineer the structures twice after complaints from the public that the waves were dangerous and flipped boats.
Supporters plan to meet with stakeholders throughout the summer and fall to further refine their proposed modifications to the legislation. They hope lawmakers will introduce a bill during the 2022 legislative session.
Water rights for natural river features would represent a shift in a state where putting water to “beneficial use” has traditionally meant taking water out of the river for use in agriculture or cities. It could mean that the often-overlooked river-recreation economy gets a bigger seat at the water-policy table.
“Recreation is a huge part of Colorado’s economy, it’s a huge part of our future, and yet it’s barely recognized in Colorado water law — and to the extent it is, it’s limited to a real-small class of recreation that only some towns and places can afford,” said John Cyran, senior staff attorney with Western Resource Advocates. “I think it’s time for Colorado water law to catch up with what’s actually happening on the rivers.”