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Alt. Water Transfers

Cover HW Fall 2017

Water sharing and banking, coined "alternative transfer methods" or ATMs, could provide flexibility for stretched water supplies —but not without marked challenges. Read the Fall 2017 issue of Headwaters magazine and explore options to:

  • keep water in farming
  • help municipalities plan ahead
  • share between ag and environmental uses
  • bank water on the Colorado River

Browse articles and find a flipbook of the magazine here.

Connecting the Drops

connectingdropslogo4.1Bringing you the reporting you crave over the radio airways with extras and archives on our website. Visit the audio archives or listen to the latest story on the National Wild and Scenic Rivers Act and the Colorado river that could become the state's second wild and scenic protect river—Deep Creek:

Deep Creek 5 web

Water Education Colorado

Headwaters magazineLearn about the Endangered Species Act by reading feature articles below, flipping through, or downloading the online version of Headwaters.

Alamosa Hatchery Specializes in Rare Species

By Kevin Darst

This summer marks the fifth year Colorado's Native Aquatic Species Restoration Facility has been breeding and releasing threatened and endangered fish into the state's rivers and streams. Opened in 2000, this facility run by the Colorado Division of Wildlife aims to recover native fish and other aquatic species, including toads, snails and mollusks, to self-sustaining populations in the wild.

The facility just outside Alamosa raises 10 fish species and one amphibian—the boreal toad—listed by the state as threatened or endangered. The six-person staff also works closely with the U.S. Fish and Wildlife Service's Upper Colorado River Endangered Fish Recovery Program to raise two federally-listed species—the Colorado pikeminnow and bonytail chub.

The Division of Wildlife, Colorado Water Conservation Board and Great Outdoors Colorado (GOCO) funded construction of the $6 million facility, the only one of its kind in the country. While traditional hatcheries require raceways (large circulating pools) and cool water to raise trout and other game species, this operation focuses on creating the warm and often silty water conditions common to many Colorado rivers.

Manager Dave Schnoor notes that so far his staff has successfully bred all but one of the species under their charge. The plains minnow, a short-lived fish that requires muddy flood waters to spawn, has been particularly difficult. ‘The challenge is to figure out the trigger mechanism that gets them to lay eggs, says Schnoor.’

While continuing ecosystem stresses ensure that Schnoor won't work himself out of a job anytime soon, he says the facility's success raising endangered fish also helps ensure that Coloradans won't be asked to drastically change how they use and consume water. ❑

Legal Brief—Water Rights for Recreation

Like to kayak? Pay attention. Worried the state doesn't have enough water storage to supply our enlarging population? Pay attention.

The Colorado Supreme Court just released a ruling on a case critical to deciding how much water will be allowed to flow through Colorado's whitewater parks, and how these water rights may affect future upstream water development (e.g, construction of reservoirs).

Some praise the decision as a ‘complete win’ for recreation, while others are reassured that it reinforced the requirement for whitewater courses to only get the minimum amount of water necessary for a reasonable recreational experience.

In the late 1990s, as the popularity of whitewater parks increased, local cities and water districts began applying for water rights to support river flows through their parks. In 2001, the state passed legislation defining and setting boundaries for these water rights. They called them ‘recreational in-channel diversions (RICD).’

This newly created type of water right, by statute, allows only the minimum amount of water necessary for a ‘reasonable recreational experience.’

The Colorado Water Conservation Board (the state's water-policy making agency) is required to review and make recommendations to the regional water courts regarding all applications for these water rights.

After the 2001 law passed, applications for recreational water rights for cities around the state—Gunnison, Longmont, Steamboat, Pueblo—began filing into water court.

The first case to be decided under the new law was an application by the City of Gunnison to secure rights for a kayak course in the Gunnison River.

The city requested a range of flows from May through September, with peak flows of 1,500 cubic feet per second (cfs) in June. These variable flows totaled more than 157,000 acre-feet annually (more water than is contained in Horsetooth Reservoir near Fort Collins, for example). These flows also constituted more than 41 percent of the Gunnison River's available stream flow each year.

By contrast, the CWCB recommended that Gunnison be allowed only steady flows of 250 cfs from May through September. When the water court approved Gunnison's flows as requested, opposers including the State Engineer's Office, CWCB and others, instantly appealed the case.

In the Colorado Supreme Court's decision released in mid-March, the court found that both the CWCB and the water court erred in this case. According to the court's opinion, the CWCB failed to evaluate the flows requested in Gunnison's application. Instead, the CWCB ‘literally ignored the application before it in favor of opining generally on its perception of the appropriate stream flow and more reasonable recreational experience.’

The court's opinion also went on to further interpret the language of the 2001 law, stating that it does not give the CWCB authority ‘to dictate a flow rate or recreation experience for RICD water rights.’ The court stated the CWCB does have authority to evaluate the application against five major concerns (see CWCB Review, p.20). If the CWCB finds that the application for example, does not promote maximum utilization of the state's waters or impairs fulfillment of Colorado's interstate water agreements, it can recommend the water court deny the application.

Further, the court found that the CWCB did not supply the water court with sufficient analysis of the Gunnison application—considering the five major concerns cited in the 2001 RICD law—therefore the court wasn't able to do a complete job of evaluating the application, as required.

Ambiguous language in the 2001 legislation did not aid matters. Much debate revolves around what constitutes the ‘minimum stream flow’ for a ‘reasonable recreational experience.’ Ask whitewater course designer Gary Lacy what is reasonable, and he is quick to respond that it depends on the purpose of the park itself.

‘If the community wants to create a world-class whitewater park for freestyle boating, the purpose is big dynamic water features. Generally that requires significantly more water than what the state considers 'reasonable.' But if they just want something you can float a boat down, with no attraction for visitors, then that is an entirely different proposition.’

The court also agreed that a ‘reasonable recreational experience in and on the water’ involves an undetermined amount of water that ‘will vary from application to application depending on the stream involved, and the availability of the water within the basin.’ Deciding the minimum amount necessary will involve hearing conflicting expert testimony, including CWCB recommendations.

So it's back to the drawing board. The CWCB must provide another set of recommendations for the Gunnison application, and the case will be sent back to water court for further interpretation. The size of the waves in future Colorado whitewater parks has not yet been decided.

Instream Water Rights v. Recreational Water Rights

Instream flow water rights allow water to stay in the stream channel ‘to preserve or improve the natural environment to a reasonable degree.’ Instream flow water rights can only be held by a state agency, the Colorado Water Conservation Board. In 2003, the state passed legislation allowing water right holders, to loan water to the CWCB for instream flows, in times of drought. The state's instream flow water rights often amount to no more than 10-15 cubic feet per second. More than 8,500 miles of stream throughout the state have been protected by this program.

Recreational in-channel diversion water rights allow water to stay in the stream channel to be controlled by structures that create specific recreational features for rafting and kayaking, for example. These water rights can only be obtained by cities, counties, and water districts. This newly created type of water right, by statute, allows only the minimum amount of water necessary for a ‘reasonable recreational experience.’ The Colorado Water Conservation Board is required to make findings and recommendations to the regional water courts regarding all applications for these water rights. Recreational water rights are generally requested only for the summer months (May-September), and may demand variable flows ranging from 50 to 1,800 cfs or more.

CWCB Review

The Colorado Water Conservation Board is required to make recommendations to the water court regarding all applications for these water rights. By statute, CWCB reviews must consider five main areas:

• Whether the water right will impair Colorado's ability to pursue use of water allotted to it under interstate agreements;
• Appropriateness of the stream reach for the requested use (e.g., whitewater park);
• Access availability;
• Whether exercise of this recreational water right will injure other instream flow rights in the river;
• Whether the requested water right promotes maximum use of the state's waters.

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