Those who use Clear Creek for recreation, and those who enjoy the ambiance along its banks, won a major victory in the state Supreme Court after a tie vote May 19.
The ruling allows the city to maintain peak water flows through the kayak course, establishing what is one of the largest water rights in the state.
The state Supreme Court split 3-3 on the case, with one justice not participating. The tie means a lower trial court decision made June 13, 2001, will stand in favor of Golden over the Colorado Water Conservation Board.
The city’s water attorney, Glenn Porzak, of the firm Porzak, Browning and Bushong, said
the ruling was a “complete victory for Golden.”
He explained that there were two main issues in the case. One was whether the city could obtain a water right purely for recreational purposes. The second was whether 1,000 cubic feet per second of water was reasonable for the kayak course between May and July each year.
“In the end, the essence of the case was ‘Can you get a large flow (of water) for recreational uses?’ This was a hotly contested issue,” Porzak said.
Some have characterized the case as a tug-of-war over limited water resources between developers and profitable recreation. The case rests on whether a recreational user, such as a kayaker, has a legal right to the water’s surface before it is diverted from the river or stream by other users.
“The great thing for Golden is that the trial court decision becomes the decision of the case, and that was enormously favorable,” Porzak said. “We couldn’t have asked for a better ruling.”
The trial court ruled that the “Golden course is perceived by many boaters as the best in the area. That reputation translates directly into economic value for the city in that it attracts boaters from across the state, the country, and even international competitors. The court finds that the reputation of the course is in large part due to the high flows.”
Golden’s water right for the kayak course is one of the largest in the state.
“People don’t appreciate the enormity of this decision for
the aesthetics of Golden,” Porzak said. “We know now that 1,000 cubic feet a second will be preserved forever, and it’s not going to change because of upstream development.”
Downstream users argued that the kayak course would deprive them of water needed for their communities. State officials said the amount of water Golden asked for was only available nine days out of the year.
Porzak said he’s not sure what this ruling will do for other recreational water uses in the state.
“They’re close calls in each case,” he said.
However, the decision was heard in conjunction with two other similar cases in Vail and Breckenridge, both of which also won by a tie Supreme Court ruling broken with the trial court decision. The Vail Whitewater Park on Gore Creek was awarded a 400-cubic-foot-per-second water right, and the Breckenridge Whitewater Park on the Blue River was awarded 500-cubic-feet-per-second.
Justice Greg Hobbs did not participate in the state Supreme Court decision. Chief Justice Mary Mullarkey and Justices Alex Martinez and Michael Bender voted to uphold the trial court’s decision. Justices Rebecca Love Kourlis, Nancy Rice and Ben Coats voted to reverse it.