When I open Google or any other search engine, I not only get the search box, but also a host of suggested articles that some algorithm thinks I might care about. I rarely open any of them, but this morning one caught my eye that said “See the most dangerous water in Colorado.” It turned out to be one of those slide shows, this one 40 pages, each with one picture (and a dozen ads) of some dangerous place for swimming or boating. None of them were in Colorado – that was just some search engine knowing what I am most likely to click on.
There are, in fact, numerous places in Colorado where boating or swimming is dangerous, but others where such recreation is enormously popular. In fact, people have been swimming, rafting, and boating in Colorado rivers since the dawn of time. Only fairly recently has this activity become the subject of political, legal, and now legislative battles.
A handful of environmental industry groups are trying to change Colorado water law, again, this time to provide that “natural features” of rivers can get water rights for recreation. They cite a section of the Roaring Fork River known as the “Hawaii Five-0 wave,” asking the legislature to amend the law to allow such a stream to have a “recreational in-channel diversion” (RICD), water right.
As usual, the advocates are probably well-meaning people, but with an unfortunate illiteracy in the basics of western water law. A natural stream course that is unaltered, as that section of river is, cannot be given an RICD water right for one simple reason. Although it is often used for recreation, and it remains “in-channel,” it is not a diversion. That distinction is not only important, it is vital to every water user in Colorado – and that’s all of us.
Water will always be controversial in Colorado, because there isn’t enough. That’s why the ability to capture, move, and use some of the state’s very limited water, during the seasons when it is available, is the basis of all life. Thus, the Colorado Constitution clearly provides that if a person diverts water from a natural stream and puts it to beneficial use, he may not be stopped. The precise wording is, “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Because almost no stream has enough water for every need imaginable in the future, water courts “appropriate” those waters to specific users, based on the “priority” of who was there first. This “doctrine of prior appropriation” is unique to the arid West, which simply could not be home to millions of people without it.
Under the law, “beneficial use” is clearly defined, to avoid misunderstandings. Originally, that meant mining, agriculture, and municipal/industrial uses. But Colorado has evolved, and the law has evolved with it. During the years I was at the State Department of Natural Resources, we added the right of local governments to hold “recreational in-channel diversion” (RICD), water rights. We now recognize that recreation is a legitimate beneficial use of water (its economic impact is huge). Several communities built kayak and canoe courses for sporting events, or waves for whitewater rafting. This assures sufficient water there, so long as it doesn’t injure the rights of other water users. That is guaranteed, because these rights are adjudicated in the state water courts, and assigned their proper priority based on the date of construction .
There are now 21 such RICD rights, held by Aspen, Avon, Buena Vista, Durango, Glenwood Springs, Golden, Salida, Silverthorne, Steamboat Springs, and Vail. All of them required some construction – some investment – in structures to enhance the stream, thus “diverting” the water from its natural course for a beneficial use. All are junior to previously existing water rights, but all of them work well, protecting their recreational use against any future developments.
This latest attempt seeks identical water rights, for nobody in particular, since nobody has invested a nickel in any diversion or any structure, to create any new use at all. If it succeeds, you can bet that some of these groups will try to create new RICD rights on rivers and streams throughout the State – not to create new uses, but to block new uses.
That is blatantly unconstitutional in Colorado, so the legislature has no such authority. Even if it did, granting “property rights” to nature itself would create a monster, threatening all future water users, including new recreational projects.
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