Colorado’s instream flow program is lauded, challenged

The Roaring Fork River in downtown Aspen often flows at a level below 32 cfs, the level at which the state holds junior instream flow rights.

Brent Gardner-Smith, Aspen Journalism

The Roaring Fork River in downtown Aspen often flows at a level below 32 cubic feet per second, the level at which the state holds junior instream flow rights.

DENVER — At least $100 million a year is available annually in Colorado to spend on land conservation, but only about $1.5 million a year is available for buying water to leave in the state’s rivers.

That’s according to Amy Beatie, the executive director of the Colorado Water Trust, who spoke last week at a forum in Denver marking the 40th anniversary of the state’s instream flow law.

The law, passed in 1973, allows the Colorado Water Conservation Board to hold instream flow rights to help “protect the environment to a reasonable degree.”

The CWCB can buy, lease or receive donations of water rights to help protect rivers, but its public funding sources are tiny compared to Great Outdoors Colorado, or GOCO, which received $59 million in Colorado lottery funds in 2013 to spend on land conservation.

As a result of two laws passed in 2008, the CWCB can use $1 million a year from a departmental construction fund to buy or lease water rights for instream flow purposes, and can use $500,000 a year from a species conservation trust fund to preserve endangered fish habitat.

Beatie said the Colorado Water Trust, a nonprofit that facilities the acquisition and leasing of instream flow rights, “longs for a resource” as robust as GOCO to help the “flow restoration movement” grow in Colorado.

“Don’t we all want to see healthy and flowing rivers?” Beatie asked the crowd gathered on Wednesday in the courtroom of the Colorado State Supreme Court for the event. “Don’t we all want to see healthy aquatic ecosystems in every river in the state?”

Forty years ago, Senate Bill 73-97 recognized “the need to correlate the activities of mankind with some reasonable preservation of the natural environment.”

Those activities, then and now, include diverting tremendous amounts of water out of rivers for agricultural, municipal and hydropower uses. For example, about 40 percent of the flow of both the upper Fryingpan and Roaring Fork rivers is diverted and sent to the Front Range through tunnels under the Continental Divide.

Instream rights

Since 1973 the CWCB has appropriated — or created — instream flow rights on 1,500 river and stream segments in Colorado, totaling 9,005 river miles. It has also acquired, through donations or long-term contracts, rights for 500 cubic feet per second (cfs) of flow in various rivers.

It may not have been. In 1975, the Colorado River District challenged the instream flow law, arguing that water had to be diverted from a river in order to be a legal water right. But Colorado’s Supreme Court upheld the law as a valid act of the state Legislature.

“As long as it’s junior to the seniors,” Colorado Supreme Court Justice Gregory Hobbs said Wednesday, standing in front of the bench he normally sits on, explaining the court’s reasoning, “and doesn’t cause injury to prior water rights, which is always the lodestar.”

Hobbs said the legal challenge made the instream flow law stronger, giving legal standing to instream flow rights. Another lawsuit in 1995, from the Aspen Wilderness Workshop, prompted a court ruling that the CWCB has a duty to enforce its instream flow rights.

In 2001, the law was expanded to allow instream flows to be used for “improving” rivers, and not just protecting them at minimum streamflow levels. And provisions have since been added to allow the CWCB to lease water from private owners without it counting against an owner’s “historic consumptive use” record — the core monetary value of a water right.

“In the future, we will see this program grow, mature,” Hobbs said. “There is no more important resource than the water resource.”

The head gate and diversion channel for the Sweet Jessup Ditch on the Crystal River. This is the largest irrigation ditch on the river and below this point, and several other diversions, the Crystal typically runs very low in late summer, well below the junior instream flow rights held by CWCB on the Crystal.

Brent Gardner-Smith / Aspen Journalism

The head gate and diversion channel for the Sweet Jessup Ditch on the Crystal River. This is the largest irrigation ditch on the river and below this point, and several other diversions, the Crystal typically runs very low in late summer, well below the junior instream flow rights held by CWCB on the Crystal.

Drop in the bucket

But lest the waters of praise for the program rise too high during the event, Ken Ransford, an attorney and CPA from Basalt who sits on the Colorado River Basin Roundtable, stood to offer a stark assessment of the instream flow law.

“I compared the pre-1923 water rights that the CWCB holds as instream flow rights, and they amount to 0.31 percent of the water that we consumed in agriculture in 2005, the last year that [data] is available,” Ransford said. “If we look at our pre-1900 water rights, the CWCB holds 0.21 percent, so that means that two-tenths of 1 percent is the amount of water that the CWCB holds compared to the water that we consume in agriculture in a typical year. My point is that we have a long way to go to really make this a robust program.”

Pre-1923 water rights are valuable because they are not subject to a “compact call” from California and other downstream states, and pre-1900 water rights are generally very senior in nature.

“The Fraser River got down to 4 cfs in 2002,” Ransford continued. “The Crystal River got down to 1 cfs in 2012. The Roaring Fork River got down to 5 cfs in 2012. The Dolores River regularly dries up. These are some of our biggest rivers in the state and they all but dry up.”

The state’s instream flow law only allows the CWCB to appropriate junior water rights for instream flow purposes, so as not to take water from those who own senior water rights. As a result, streams where the CWCB holds junior rights are often still left shallow or dry after senior water rights for irrigation are exercised.

For example, the CWCB holds an instream flow right for 32 cfs on the stretch of the Roaring Fork River through downtown Aspen that dropped to 5 cfs in 2012, but senior water rights diverted above that section — primarily in the Salvation Ditch — trump the CWCB’s environmental flow right. On the Crystal River, senior irrigation rights overrule the CWCB’s instream flow right of 100 cfs.

While the CWCB does mostly hold junior water rights, those rights are beginning to matter more as they age, said Eric Kuhn, the director of the Colorado River District.

“A lot of development has occurred on the West Slope in resort towns since the 1970s,” Kuhn said. “So now those very junior instream flows, that looked so junior in 1982 or 1977, today they are senior, today they really do change how we do business.”

Money into water

In addition to creating new instream flow rights, the CWCB can also buy, lease or accept as a donation senior water rights. But the process can be daunting, as the water right needs to be changed in water court.

Ransford said it took Pitkin County several years in water court and over $200,000 in legal fees to enter into a long-term lease with the CWCB to leave water in sections of Maroon Creek and the Roaring Fork River.

Drew Peternell, the director of Trout Unlimited’s Colorado Water Project, said the process should be easier.

“The irrigator who wants to make that transfer of water has to go to water court, and that’s going to be a risk for him,” Peternell said. “There is a potential that the water right could be quantified at a level that is smaller than the irrigator thinks is appropriate.”

That’s what happened to Pitkin County, which sought to leave 4.3 cfs of water in lower Maroon Creek and a section of the Roaring Fork River below its confluence with Maroon Creek. Instead, it came away with the right to leave up to 3.83 cfs in Maroon Creek, but with only 1.22 cfs being left in the stream on average between May and October. In the Roaring Fork, the county can leave up to 3.54 cfs of water, but with an average of only 1.13 cfs.

The county, however, still intends to transfer up to 35 more water rights from its open space properties to instream flow rights to the benefit of local rivers.

That’s welcome news to the CWCB, which recognizes that even small amounts of water can help keep late-summer water temperatures down to the benefit of fish in the river.

“This was a new partnership for us with the county,” Linda Bassi, the head of the CWCB Stream and Lake Protection Section told the audience. “We’re really excited about it and hope it is a template for other relationships with other counties.”

Editor’s note: Aspen Journalism is collaborating with the Aspen Daily News on coverage of water and rivers. The Daily News published this story on Tuesday, Jan. 21, 2014.

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