Liquid asset

It’s not exactly Los Angeles traffic, but a rush-hour queue of kayak-topped cars and school buses towing inflatable rafts crowds this Rocky Mountain town, the hub of one of the busiest whitewater destinations in the nation.

A main attraction along the Arkansas River is a manmade water park where gyrating kayaks perform aerials as spectators watch from footpaths and terraces. Colorado has built more such places than any other state, and dozens of others have popped up in Reno and elsewhere in the West as towns install them to enliven waterfronts and city coffers. In California, communities along the Feather, Kern and American rivers are considering building the parks.

Yet as these riffled play zones change the face of small-town USA, they are also shaking up water law. It takes lots of liquid to generate the waves and holes that nimble kayaks require. And in the arid West, where ranchers, growers and cities control seemingly every drop, whitewater enthusiasts are the new guys contending for a big gulp.

“There is increasing recognition of the enormous economic force of recreational water use,” says David Getches, dean of the University of Colorado School of Law. “States must, as a matter of economic necessity, find a way to protect or allow in-stream uses for recreation.”

Nowhere is that more evident than in Salida, about 140 miles southwest of Denver. A decade ago, the stretch of the river running through downtown was littered with scrap concrete and cars. Today it is a destination for many of the 300,000 paddlers and boaters annually who visit a busy 80-mile portion of the Arkansas River to bob, flip and side-surf over strategically placed boulders, hydraulic holes and designer waves. Visitors pump more than $50 million into the local economy per year.

But the water parks not only revolutionized freestyle boating technique; they roiled the precedent-choked channels of water law. They need flow during summer, when recreational use is highest, or else investments in water parks are worthless. And whitewater enthusiasts who ply rapids outside Salida see the water park as an opportunity to expand recreational water rights far into the canyons.

“You need a significant amount of water to create the water features that are so attractive to so many people who are boating, buying beers after they’re done, staying in hotels and buying kayaks and gear,” says paddle-park designer Gary Lacy.

Colorado became the first Western state to explicitly designate water rights for paddle parks when in 2001 Golden, Vail and Breckenridge won a case in the state Supreme Court. “Recreational in-channel diversion” (RICD) rights protect manmade water parks against diversions that could reduce flows during summer.

“You can’t put water back into the river,” explains Drew Peternell, a staff attorney with Trout Unlimited. “But what an RICD right can do is save what’s left.”

Yet that same year, the Colorado Legislature passed a bill imposing new restrictions on cities seeking in-stream flow rights and required that whitewater parks receive only “the minimum stream flow necessary for a reasonable recreational experience.” The ambiguity of the law has spawned lawsuits.

In Colorado and the West, the idea that water left in a stream is more valuable than water pumped out of it is revolutionary. As more and more water parks spread across the region, disputes like the one in Salida are inevitable, experts say.

“That concept would have been impossible to understand, if not heresy, for the people writing the early water laws in the 19th century,” Getches says. “At that point, the way to serve the economy best was to divert water out of the stream and put it to productive use on the land.”

In the new water war, the Colorado Water Conservation Board has challenged recreational stream flow levels in court and in the Legislature. The water policy agency is joined by agricultural interests and thirsty Front Range cities.

“Really only the extreme kayaking community wants to have real high flows, and what that does to the rest of us is prevent us from moving water on the rivers,” says Gerry Knapp, a water manager for Aurora, Colo.

Meanwhile the state water board recommends smaller flows for each paddle-park rights application it reviews, and it has lobbied unsuccessfully for a bill to cap recreational flows at 350 cubic feet per second. Ted Kowalski, of the water board staff, said, “People are holding whitewater competitions at flows much lower than some of these pending [water rights] applications,” and he added that the board is obliged to provide “the ‘minimum’ flow for a ‘reasonable recreation experience,’ not the ‘optimum’ flow.”

Further, local officials continue to play politics over the composition of the Upper Arkansas Water Conservancy District. A federal judge last week filled a seat on the district governing board with an official who favors recreation.

“The board members have been the classic good old boy ranchers or super-developers,” says Chaffee County Commissioner Jerry Mallet, a longtime boater.

Whitewater recreation advocates charge that the state water board is pushing stream flows that literally would not float a boat. They say the water rights dispute on the Arkansas River is critical because upstream cities, including Colorado Springs and Aurora, are purchasing water rights to grow.

“We lost the mines and had a big economic depression. We lost the railroad that delivered to the mines, and had another depression,” says Mike Harvey, a competitive freestyle kayaker and executive director of the Arkansas River Trust. “Now the resource is the river, and we don’t need to learn that lesson a third time.”