August 2005

Fighting for whitewater

By Jim Mimiaga

Rafting and kayaking Colorado’s numerous whitewater rivers is a surging business, pumping $200 million into the state’s economy last year, according to industry analysts. The Four Corners contributes its share, hosting thousands of commercial and private boaters on the Animas, Dolores and San Juan rivers each spring and summer.

In the past five years a wave of popularity has hit the sport statewide, prompting cities such as Golden, Salida, Gunnison, Steamboat Springs, Vail and Breckenridge to seek water rights for whitewater parks through their towns for athletes to compete in, and for tourists to watch.

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But as commercial and residential development booms in the state, the question of whether whitewater parks can gain the legal clout to sustain themselves is unclear. Without court-recognized recreational water rights, towns like Durango, Dolores and Pagosa Springs could see their whitewater stretches depleted of the higher flows needed for the challenges coveted by river enthusiasts.

Animas River vulnerable

In Durango, officials recently began discussions to consider establishing so-called recreational in-channel diversion rights for the Smelter Rapid kayak course. The method is to ensure adequate flows for the course by securing water rights that would be senior to the inevitable thirst of developers upstream.

The Smelter course could be threatened by water demand for development up-valley in Hermosa and Purgatory, for instance. The ski area recently received approval for 1,600 more condos and 400,000 square feet of commercial space. More water is required for these projects to be built. Competing with the powerful developers’ industry for limited water resources will be challenging, said Durango City Manager Bob Ledger.

“We would probably be sued if we go forward on applying (for RICD rights),” he said. “And that fight will be expensive.”

But the thought of upstream development 50 years down the road leaving the kayak course dry is far more costly in the long run for the booming recreation town, he added.

“Durango touts itself as a recreation area, and a lot of that economic focus is on the river so (a RIDC) would be a natural adjunct to that,” Ledger said. “We understand what is at stake and that there is opposition. Developers north of the city view it as a threat to their ability to acquire water rights.”

A whitewater park that trains Olympic athletes and hosts national competitions is too important to ignore, supporters say. Water law is beginning to change from a focus that is strictly agriculture, Ledger added, noting that “new businesses like rafting have come to the fore, and they depend on the Animas River flowing by.”

Golden: Whitewater pioneer

In 2001, that change from agriculture to water sports shocked the water-development industry, when the city of Golden successfully filed for the state’s first recreation water right under the old laws. According to arcane water law, water rights are priorappropriated, or “first in turn, first in right”. So, seeing d e v e l o p m e n t upstream, Mike Bestor, Golden’s city manager, figured it was critical to secure whitewater flowing through the kayak course on Clear Creek.

“We wanted to make sure that someone upstream didn’t claim rights that would deplete our flows. Our kayak course is very important to us and our businesses here — we invested $165,000 in it,” he said.

When the mining-bust towns of Cripple Creek and Black Hawk discovered state-sponsored gambling, the development boom began. With the towns situated upstream from Golden on Clear Creek, the writing was on the wall, Bestor explained, noting that a recreational water right is non-consumptive — it simply flows by and is available downstream for further use. Also the right is junior to all other rights filed before, so previously allocated water cannot be claimed for whitewater parks.

Using the agricultural language in the law of “diverting” water for “beneficial use,” Bestor and his staff successfully claimed the repositioned boulders in the kayak course were the diversion and the economic benefit was rafting and river sports.

The Colorado Water Conservation Board sued, but the state supreme court ruled Golden’s claim was legitimate. Fearing rafters would somehow trump development, the Colorado legislature quickly passed SB 216, which puts applicants for recreational inchannel diversion rights under the purview of the state water conservation board for review and on to the state water court for approval. Currently dozens of towns are under that process, said Jeff Moag, of Paddler magazine, a national publication based in Steamboat.

“Colorado is way ahead of the curve on this compared to other states,” he said. “More than half of all whitewater parks nationwide are in our state.”

Steamboat’s claim for recreation water on the Yampa kayak course is being debated in the courts, Moag said. What is an adequate flow for sufficient whitewater runs is the question. A bill, SB 62, which sought to cap RICDs to 350 cfs, was defeated in the last legislative session because the level was seen as too arbitrary considering the variety of river sizes in the state. It could come up again next session. But the state water court’s concerns that flows demanded by river enthusiasts are too high could be alleviated somewhat with engineering, observers say.

For instance, whitewater courses could be arranged in such a way to allow for lower flows, such as creating more pools or narrowing certain channels to divert water towards wave structures.

Moag remarked that it’s inaccurate for opponents to categorize RIDCs as water sports versus agriculture. “It’s actually kayakers and traditional users of agriculture versus runaway development in the state,” he said.

“Guaranteeing use of rivers for both ag and rafting is the battle of the future.” That sprawling growth translates to 1 million new homes predicted in the next 10 years between Colorado Springs and Pueblo. For the towns of Buena Vista, Salida, and Cañon City, that could spell trouble for the worldfamous whitewater on the mighty Arkansas River.

With trips ranging from Class I and II rapids to the monstrous Class IV-V waterfalls in the infamous Royal Gorge, the scenic Arkansas is considered the nation’s most popular rafting destination. It may seem nonsensical that growth downstream affects flows upriver, until one realizes that the Onterrio Tunnel is situated near the headwaters of the Arkansas above three communities that rely on rafting for their summer economies.

The pumping plant delivers water to the Front Range via tunnels that bore through the Rockies. Saving some permanently for the rafting industry downstream is the goal of these communities, say Chaffee County Commissioner Jerry Mallett. The county, in partnership with the three towns, is negotiating guaranteed flows through SB 216, a process that has gone well, Mallett said.

“The (state water board) has indicated it will not oppose the claim if we can resolve concerns by interveners Aurora, Colorado Springs and Pueblo,” he said. “I think we’re about there because we’re balancing our rafting needs with those of developers on the Eastern Slope.”

Obviously, with the heavy snowpack in the mountains, the Arkansas River will always have a rafting season in our lifetime but in the long term — say in 100 years — that could change as more tunnels are built and more water extracted from the valley. RIDCs are insurance for rivers depending on water sports, Mallet explained. Under the pending recreation-right deal, once senior rights are claimed — and assuming there is average snowpack — the upper Arkansas would be guaranteed 1,500 cfs through the season, bumping to 1,800 cfs during river festivals in July.

Focusing on river sports has been wildly successful, and a lot of fun, said Salida Administrator Julie Feier. “Before, we had a concrete wall between downtown and the river. Now it is a river park with a trail, beaches, swimming and play holes for kayakers. Residents and tourists are there all the time now and it has created a boom for us.”

Mark Garcia, city manager for Pagosa Springs, also is tapping into the San Juan River for economic benefit. Rapids were improved along the town stretch, which flows by the town’s world-famous natural hot springs. Phase II is under way for additional fish-habitat restoration, better river access and more waves for boaters.

“The whitewater improvements have been a great hit in town,” Garcia said. “We created a standing wave for surfing and where the river was once wide and shallow, we condensed the low flows into pools for fish habitat.”

Upstream development and growth is not an issue now, he said, so Pagosa is not considering applying for recreational water rights.

Dolores Mayor Marianne Mate said the idea is worth considering. In recent years ecological improvements have been made to the Dolores River through town, a popular stretch for kayakers, inner-tubers, swimmers and fishermen. The recent river festival attracted a huge crowd this year, triple that of previous years, she said.

“When the river flowed high like it did this season, more people get to see Dolores, and there is a increase in sales taxes, so the impact is very positive,” Mate said, adding that Dolores struggles to attract summer tourists; hunting season in the fall is the big boost.

“We’ve discussed a kayak course as a way to attract visitors during the shoulder season in spring when the runoff is ideal,” she said.

Mallet urges communities with rafting not to take the flow for granted.

“File sooner rather than later,” he said. “Recreation is a driving economic force for Colorado, and securing rights for our water parks and rafting gives us standing against inevitable new development.”