ESPN

DENVER, Colo. — Recreational use of water has been affirmed as a right equal to that of more traditional uses, such as irrigation and water supply, in the state of Colorado. Although fishing and boating always have occurred on Colorado's rivers, streams, and reservoirs, they were once considered only incidental uses.

"The fact of the matter is that the state was trying to get the Supreme Court to utter a pronouncement that treated recreation as a second class use, and they didn't get that," said Glenn Porzak, water attorney for the city of Golden.

"It's a key victory because it treats water for recreation just like any other water right."

The Court didn't actually rule in favor of recreation water rights, but instead deadlocked at 3-3, meaning a lower court's ruling that approved water rights for kayak courses in Golden, Vail, and Breckenridge will stand.

The Colorado Attorney General's office had appealed the decision to the U.S. Supreme Court, alleging that water-court judges Jonathan Hays and Tom Ossola had turned Colorado water law topsy-turvy by giving communities rights that they shouldn't have.

The state argued that more traditional uses should have priority over the cities' water rights for kayak courses. Before diversions for such uses could take place, it said, water had to be physically removed from a stream, or impounded. Clear Creek Whitewater Park in Golden had been created by placing 4,000 tons of boulders in a free-running stream.

A major factor in Colorado's opposition was its fear that recognizing yet another user's water rights might complicate its legal obligation to share water with other states.

The communities contended that the kayak courses were beneficial economically and, thus, deserving of equal consideration with other uses. During its first three years, for example, Clear Creek pumped $23 million into Golden's economy.

Many supporters of the decision say that this ruling opens the door for any government in the state to assert recreational water rights. Others argue that the issue remains ripe for further clarification, since the Court was split evenly and did not issue an opinion.

But it's significant because the sport of fishing falls under recreational use of water, as well.

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