In West, recreation parks lay claim to scarce water
GOLDEN, COLO. — As the current gushes down Clear Creek, waves buck beneath Preston Levato like the thrashing of a wild bull, and he strains to keep his kayak upright.
The adrenaline-charged sport of "playboating" - kayaking on roiling water as it spills over rocks - is captivating a streamside crowd at Golden's Clear Creek Whitewater Park, and turning the heads of passing dog walkers, bicyclists, and mothers pushing strollers. It's a Saturday afternoon, and a dozen kayakers in Crayola-colored boats are practicing intently. But the crowd's rapt attention - and the kayakers' glee - belies the bitter controversy here in Colorado over a sport that's pitted Old West Values against a New West hunger for the economic windfall of tourism.
At issue are manmade kayak courses like this one: They draw crowds, pumping cash into limp local economies. But the parks depend on vast allocations of water - one of the arid West's most prized and contested commodities.
The debate turns on the question of whether recreation should be on par with "traditional" water uses in agriculture, homes, and industry. Critics say that even though whitewater courses don't actually use the water they claim, the rushing-river effect means there's less water available for others.
"By locking water in the stream for this use, we don't know what the total impacts are upstream and downstream for future development," says Ray Christensen, executive vice president of the Colorado Farm Bureau. "From a public-policy standpoint, we don't think this is an important use." With a resource as limited as Western water, he says, each demand raises pressure on consumers.
The agricultural community is not alone in its concerns. The state, too, is troubled by the potential impact of playboating, and has challenged the legality of three whitewater parks - including Golden's. But a recent ruling by the Colorado supreme court found those water rights satisfy the letter of the law.
The legal issues are complex: Colorado has long precluded municipalities from claiming water solely for aesthetic or recreational use. And state law requires a diversion to "perfect" a water right - and earn the water court's approval. But Golden was the first Colorado town to circumvent that legal obstacle, claiming water rights and yet retaining them in the stream. By placing rocks and dam-like structures in a stretch of Clear Creek, they created the legal fiction of a water diversion. Although the water was channeled - and not taken from the stream - it satisfied the legal standard.
"The law allows you to either divert or control the water within the channel," explains Steve Bushong, a Boulder water attorney who defended Golden, Vail, and Breckenridge. The court's decision "puts recreation on equal footing with other uses of water," he says.
The one-time Gold Rush mecca of Golden has morphed, over a century and a half, into a small, middle-class community still rooted in its Old West past. The chief industry here is the Coors Brewing Company, lending the town an industrial feel, and the Colorado School of Mines draws students intent on geology, petroleum, and coal. Against the legacy of miners who panned for gold where kayakers now surge and bob, the Denver suburb has felt the pull of the regional surge in development - and the economic lure of tourism and recreation.
Already, Colorado is at the cutting edge of the kayak-course trend, with a dozen existing parks. Moreover, it's the only state that legally recognizes in-stream diversion for recreation. And since Colorado water law influences other Western states, the precedent may be far-reaching. "We believe this is really one of the best types of water appropriations," says Mr. Bushong. "There are all these [economic] benefits - yet there's no consumption."
State officials are skeptical, and they question whether legal defeat will have much bearing on future challenges. A state law limiting recreational water rights to the minimum "reasonable" amount was passed after the Golden case, and it's unclear whether the town's claim would have satisfied that standard, says Alison Needham, litigation coordinator for the state Division of Water Resources. From the state's perspective, the claim was excessive - and thus illegal. "They claimed every drop of water available. That means every drop has to touch that kayak course before it's available to anyone else," she says. "That's a problem if you're upstream."
Opponents include several water-short Colorado towns fearing kayak parks may thwart the water rights of future development. Though the parks' vast consumption isn't a problem as long as there's plenty of water, a drought could find those applying for water after a kayak park in a dry and difficult spot.
Still, until courts rule otherwise, the latest victory is a boon to the recreation industry. "The court is leaning toward more access for boating," says Holly Johnson, spokeswoman for the Colorado River Outfitters Association. She predicts that other water activities, from rafting to fishing, will ride the wave.
To those who point to the primacy of farming, park advocates like Bushong retort that "recreation is a new economic force" - and a magnet for tourism. Clear Creek draws some 15,000 boaters a year, with an annual economic benefit between $1 and $2 million, says Dan Hartman, public-works director. "It's one of the biggest activity centers in town," he says, hosting weekend events from slalom races to freestyle kayak "rodeos." Even the US Junior Olympic team trains here.
To users, Clear Creek is simply the amusement park of their dreams. Mr. Levato, who hones his kayaking skills here most afternoons, calls it "one of the nicest kayak parks in the US." His eyes still lit with the thrill of the ride, he concludes, simply: "It's very fun."