The Senate Agriculture, Natural Resources and Energy Committee voted 5-1 last week to endorse Senate Bill 37, which is supported by such powerhouses as the Colorado River Conservation District, the Denver Water Board and the Colorado Farm Bureau.
"This is a different type of water right and we need different rules," said Sen. Jim Isgar, D-Hesperus, the bill's primary sponsor. "This does not restrict what we feel is a valid amount of water necessary for recreational use."
Isgar, whose Senate District 6 includes San Miguel County, noted the state Supreme Court asked for clarification of legislative intent in a 2001 law that for the first time granted water rights for a recreational in-channel diversion, commonly known as a RICD. Several communities have opened whitewater parks since the original law was passed.
"Whitewater parks are an important and growing outlet for recreation throughout Colorado," said Mark Robbins of the Colorado Whitewater Association. "Our concern is that the provisions of Senate Bill 37 will discourage development of new whitewater parks and potentially impact already existing RICDs."
Avon mayor Ron Wolff said the whitewater parks are most useful during the "mud season, which is a time of economic slump for our businesses.
"Whitewater will bring users into town during weakest economic season when restaurants and hotels are struggling for any business at all," he said.
Isgar and Peggy Montano, an attorney who worked on the language of the bill, assured opponents that no existing RICDS would be affected, nor would applications for RICDs filed before Dec. 31, 2005. Avon filed its application in December.
Attorneys for tourist-dependent counties and mountain towns cautioned the bill could be declared unconstitutional because it treats a recreational water right different from those historically granted for agriculture, municipal or industrial uses.
They particularly objected to a requirement that the water right holder prove 90 percent of the water claimed was available before it could place a "call" to have it delivered.
"This treats a RICD as if it creates no beneficial use at all below 90 percent of the decreed amount," said Drew Peternell, an attorney for Trout Unlimited. "With any other kind of water right, the State Engineer would honor a call if doing so would produce any amount of water that can be placed to any beneficial use."
Peternell and other attorneys said the provision could keep communities from getting the water needed to operate their river parks in drought years.
Chris Treece of the Colorado River Conservation District said the 90 percent threshold provision was needed to ensure communities did not apply for more water than needed to run the parks.
"It's the only natural incentive for the applicant to apply only for the water that is necessary and that can be expected to be delivered," Treece said.
Sen. Dan Grossman, D-Denver, was the only "no" vote in committee. He tried and failed to win approval of an amendment that would have removed a restriction that RICD water rights be decreed only for kayaks.
"This is a recreational water right, not a kayak water right," Grossman said.
Isgar countered that the limited water right would not preclude other activities in the water parks, such as rafting, canoeing, inner-tubing or boogie-boarding. He said the RICD is limited to kayaking because the amount needed for the sport could be quantified.
Senate debate on the bill has not yet been scheduled. A similar bill last year passed the Senate but stalled in the House under intense lobbying from environmental and tourism lobbyists.
Oil and Gas Legislation
Legislators also are making progress in the dispute over massive oil and gas drilling projects throughout Colorado.
The House Transportation and Energy Committee voted 11-0 to endorse the bill from Rep. Kathleen Curry, D-Gunnison, which gives landowners more leverage in negotiating surface-use agreements with the energy companies who own the subsurface mineral rights.
The House Bill 1185 contains requirements for notification of landowners when drilling is about to take place, an increased bond if no surface-use agreement is reached, and compensation for lost land value the drilling causes.
"The issue in front of us is the lack of authority of the (Colorado Oil and Gas Conservation) Commission to deal with one of the primary sources of contention, which is compensation for damages," Curry said. "This is where most of the debate has been."
Curry tried and failed the entire 2005 session to enact similar legislation, which was strongly opposed by the oil and gas industry. The stalemate was broken last month when BP Energy decided to start talking with Curry and the landowners.
The bill has to pass through the House Appropriations Committee before it can be scheduled for debate on the House floor.