Colorado Supreme Court Rules for Recreational Water Rights

Posted: 05/22/2003
by Jason Robertson

Colorado's Supreme Court ruled in a tie vote on May 19, 2003 that Golden will be allowed to maintain 1000 cfs flows on the Clear Creek Whitewater Course during the summer.

The case was the opening salvo in a battle in the water wars between recreational economic interests and more traditional interests for water such as agriculture.

The decision was actually a 3-3 tie, meaning that state water court rulings from 2001 and 2002 will stand that favor Golden over the Colorado Water Conservation Board, which sets water policy.

American Whitewater followed this case with great interest, and met to discuss it several time with the attorneys, since it involved one of the nation's finest whitewater courses and also because of our interest in the precedent that it sets for recreational intersts beyond Golden. For instance, the ruling is expected to affect cases filed by the ski areas at Vail and Breckenridge for similar water rights for boating courses.

On June 23, 2001 American Whitewater reported that Judge Jonathon Hays has granted increased water rights for recreation purposes to the Clear Creek kayaking park in Golden, CO. The judge ruled for the city over protests from the Colorado Water Conservation Board, which had sued Golden to protect the water for more traditional uses (farming, industry, domestic, etc.) and claimed that Clear Creek did not have sufficient water to support Golden's whitewater park. The state had argued that the use of the water by the communities for the whitewater parks was not a diversion for a beneficial use, as required by law. But the communities argued otherwise, calling the kayaking courses extremely beneficial. The Clear Creek Whitewater Park, had attracted 45,000 users and brought $23 million into Golden's economy.

A 2001 report in the Rock Mountain News quoted Golden's water attorney, Glenn Porzak, "It was the first time that a large water claim was made for water for recreational use." Porzak added, "You've got to take off your blinders. This is the present and the future of the state. People come here to recreate, and that has huge economic benefits."

Judge Hays ruling that was upheld ensures a flow of 1000 cfs through the Golden Water Course between May and July.

Chief Justice Mary Mullarkey and Justices Alex Martinez and Michael Bender voted to uphold the water court's judgment, and Justices Rebecca Love Kourlis, Nancy Rice and Ben Coats voted to reverse it. Justice Greg Hobbs abstained from voting given an acknowledged conflict of interest, since he used to practice water law and represent clientson water rights interests.

The Denver Post quoted Glenn Porzak, Golden's water attorney and American Whitewater's attorney on the lake Fork of the Gunnison, "It's a key victory because it treats water for recreation just like any other water right... The fact of the matter is that the state was trying to get the Supreme Court to utter a pronouncement that treated recreation as a second-class use and they didn't get that. So it's a major victory in that regard."

Jason D. Robertson
635 Joseph Cir
Golden, CO 80403-2349