Saturday, January 29, 2005
We have long held that the city of Steamboat Springs' application for recreational in-channel diversion rights on the Yampa River was a smart move on behalf of our tourism-based economy.
That's why it was surprising to learn last week that state Sen. Jack Taylor, one of tourism's biggest champions in the Legislature, is carrying legislation designed specifically to derail the city's application. We disagree with Taylor's bill, and if the bill makes it to the floor, it should be defeated.
The city applied for recreational water rights on the Yampa at the end of 2003. The goal of the application was to ensure minimum stream flows in the Yampa for recreational uses including kayaking, fishing and tubing. The city would not take water out of the river. Rather, the city's application simply prevents upstream users with junior water rights from diverting water from the river that would drop stream flow in the Yampa below a certain threshold.
We view the city's water right request as an important insurance policy that works to protect the health of the river, a key component of our economy.
True, some supporters of the city's application are concerned less with ensuring stream flow for kayakers than they are with controlling future development upstream. If the rights ultimately are granted, future developments -- neighborhoods, golf courses, ranches, etc. -- would have to factor the city's rights into their water needs. And the city's application could have a negative effect on future agricultural operations upstream.
Other critics argue the Steamboat application could affect growth in upstream communities such as Oak Creek. But water law historically has held that municipal water needs are senior to recreation rights.
Taylor worked with Steamboat attorney and noted water expert Tom Sharp, an outspoken critic of the RICD application, in developing the bill. The bill would limit recreational water rights so that they can be used only for kayaking and require that at least 10 kayakers be on the water before the water could be released. The bill also requires recreational water right owners to control 100 percent of the water they request for use.
Taylor argues the bill holds the city to the same standards that other water rights holders have had to meet throughout the history of Colorado water law. He notes agricultural water rights holders, for example, can't place a call on the river without demonstrating that the called water will go to its designated use and without being able to properly control the amount of water called.
The control requirement effectively works to cap the amount of water the city diverts for its RICD. Taylor knows it isn't practical for the city to control 1,700 cubic feet per second, the maximum amount of flow the city requested in its application.
But the control requirement ignores the fundamental difference between traditional agricultural water rights and recreational water rights. It is reasonable to expect agricultural water rights holders to control the water to ensure they are not removing excess amounts from the river. But the city's filing only would limit what junior water right holders upstream could remove in times of low stream flow. Requiring the city to control that water isn't necessary given the intended recreational use.
A pivotal case involving recreational water rights on the Gunnison River has been appealed to the state Supreme Court. A decision in that case is expected to set precedent for other recreational water rights cases, including Steamboat's.
We think Taylor should have let the courts sort out this issue. We hope Taylor's colleagues in the Legislature will.