The Post is reporting that legislative Democrats are signalling a willingness to compromise with Republicans on the issue of instream water appropriations for recreational uses. My question is: why?
Back in the Gold Rush days, Colorado water law gave rights to the first person who "diverted" water for "beneficial use." This favored people who wanted to take water out of a river. Eventually, the law came to recognize that leaving water in the river can also be a "beneficial use," and so relaxed the "diversion" requirement. This opened up an opportunity for whitewater rafting companies -- and rural water districts like the Upper Gunnison Valley Water Conservation District that want to work with them -- to obtain decrees guaranteeing that water would be in rivers for their use.
Very recently the Colorado Supreme Court threw out a water court decree that rather arbitrarily limited the in-stream flow entitlement for a whitewater kayak course in the Gunnison Valley to 350 cubic feet per second (cfs). The decision was a victory for the kayak course operators, who say a real world class whitewater experience requires a much stronger flow -- and presented lots of evidence to the water court to back that up.
Now legislative Republicans want to write the 350 cfs cap on instream whitewater uses into law. My view is that Democrats are right to object, as Rep. Alice Madden (D-Boulder) did, that such a restriction would hurt rural communities that are trying to develop their recreational industries by supporting whitewater rafting.
People who want a decree for surface water rights already have to show that their proposed use will not harm existing, senior water rights. So while the sponsors of the 350 cfs limit say they are trying to protect Western Slope drinking water, it seems to me what they are really protecting is the ability of people to make new, junior, claims on the river. I don't see a good reason why Colorado Democrats shouldn't stick to their guns and let whitewater kayak operators be treated like any other would-be appropriator who can be entitled to as much water as they can show they will beneficially use without injury to senior water rights. Why agree to any cap -- even higher than 350 cfs -- that could only prevent people from offering world class whitewater experiences?
The mountain recreation industry is a crucial part of the emerging Democratic coalition in the West, so I see no upside for Democrats in agreeing to some cap on water use that would prevent that industry from developing world class (and relatively low impact, environmentally speaking) whitewater courses in our state.