It has been nearly two months since my last post on westernriverlaw. In that time I managed to finish a new article–more on that next time–and completed a few other more-or-less scholarly tasks. I also had the pleasure of speaking at the Natural Resources Law Teachers Lunch at the Annual Institute of the Rocky Mountain Mineral Law Foundation. And in preparation for that talk, I did some very important and relevant research while seated in my kayak, investigating the whitewater parks in several Colorado towns.
What allows me to claim whitewater kayaking as research? Because Colorado water law specifically provides that cities or local governments can obtain a special type of water right for whitewater kayak courses. Such rights were originally recognized as legitimate appropriations by the Colorado water courts, and are now authorized by statute. The law, which gives these rights the clunky name of Recreational In-Channel Diversions (RICDs), allows water to be appropriated for these courses as needed to provide a “reasonable recreation experience” … as if anyone ever goes kayaking to have a “reasonable” time on the river.
These whitewater courses are designed by engineers and constructed to provide whitewater features–waves and holes–that provide varying degrees of action at a range of flow levels. They provide more-or-less safe and reliable fun on the river, and more than two dozen of them have been built in cities and towns across Colorado, mostly in the high country. The courses are not unique to that state–they can be found on rivers in other western states, and even in Canada–but only Colorado specifically allows them to obtain water rights for recreational river flows.
How did Colorado–a state that takes its water law very, very seriously–come to recognize RICDs for kayak courses? Its Supreme Court laid the foundation in a 1992 case, in which it held that the City of Fort Collins could get a water right for wildlife and recreational purposes on the Poudre River as it flowed through town. The City was not making a conventional diversion of water, and opponents argued that the City was effectively seeking an instream flow appropriation, which in Colorado may only be obtained by a state agency. But the court held that Fort Collins was using structures in the river to control flows for recognized beneficial uses, making for a legitimate appropriation of water. Later, other Colorado cities–starting with Golden–relied on this precedent to obtain very large appropriations of water for kayak courses, successfully arguing that whitewater parks were economically important community amenities. Critics of these appropriations sought to have them outlawed by statute, but the Legislature refused to do so, codifying RICDs while imposing certain conditions and restrictions on these special water rights.
It is probably fitting that Colorado, with an economy that relies heavily on outdoor recreation, would be the first state to recognize water rights for this purpose. Whitewater rafting and kayaking are important summer economic activities in that state, especially in Western Slope towns that seek to attract visitors outside of ski season. For my part, I enjoyed whitewater parks on four different Colorado rivers this summer (the Animas, San Juan, Eagle, and Arkansas), and along the way I managed to drop a few coins in the local hotels, restaurants, and pubs. My research confirms that the whitewater parks in Durango, Pagosa Springs, Avon, and Salida do indeed provide a “reasonable recreation experience,” at least for this kayaker. And I may have to go back next summer, just to make sure they still do.