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Water Law

Right to Remain: Non-consumptive water rights pose a worthwhile administrative challenge

By George Sibley

‘It's a work in progress.’

That's how water commissioner Richard Rozman describes Colorado's ongoing efforts to fit a river's instream flow rights into a legal system originally designed to govern the removal of water from rivers.

Rozman fits the traditional image of the water commissioner, the guy responsible for administering water law in the sometimes contentious social environment of a head gate. Rozman is a big man, for one thing, which sometimes helps in that environment. But he is also a friendly and reasonable man, which helps a lot more.

He also grew up in the valley where he is now water commissioner, son of a rancher on the Slate River branch of the Upper Gunnison River. For most of the 20th century, it was practically required that a water commissioner know well the majority of the people on whom he might have to impose some hardship in the name of the law.

But over the past half century, Rozman's District 59 in the Upper Gunnison watershed has gone from a mining and ranching economy to a resort and recreation mecca, changes reflected by new water uses. Similar evolutions statewide have forced changes in Colorado's water law, and the water commissioner's job has gotten more complex accordingly. Commissioners still primarily administer agricultural water—more than 90 percent of the water used in the Upper Gunnison —but new mandates and rules have elbowed their way into the sacred precincts of priority.

If the many changes impinging on Rozman's job could be summarized in one sentence, it would probably be this: Water today is at least as valuable economically in the river as it is out of it. Prior to World War II, the right to use water required the user to put it to beneficial use in the human economy. With the exception of hydropower, this meant taking it out of the stream for irrigation, domestic use or industry under the 1876 constitutional promise that ‘the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.’
But after World War II, with the West increasingly urbanized, much of the non-urban West, with its mountains, rivers and deserts, became the playground for city-dwellers. There was also a growing national awareness of environmental deterioration following a century of heavy industrial development. These cultural changes were resolved with a kind of seismic lurch of federal and state legislation during the mid-1960s and mid-70s. The cultural perception of beneficial uses for water resources lurched along with everything else. Relatively suddenly, non-consumptive uses of water—water for instream recreational and environmental needs, from fishing to rafting to ecosystem maintenance—were seeking parity with traditional consumptive uses, primarily irrigated agriculture.

One important new law was Colorado's 1973 Senate Bill 97, which created the West's first legislated instream flow protection program ‘to correlate the activities of mankind with some reasonable preservation of the natural environment.’ The concept of allocating rights for water to be left in the stream for environmental purposes, with no diversion required, was fairly revolutionary. Ownership of such rights was limited to the state, through the Colorado Water Conservation Board. According to Steve Sims, a former Colorado Assistant Attorney General for resource issues, proponents of the instream flow program hoped this step would ‘alleviate the fears of the water development community.’

Instream flow rights enter the administrative system in priority, junior to all prior decrees, meaning that senior users upstream can dry up a protected instream flow in water-short years. Given the fact, however, that many protected segments are in the headwaters reaches of Colorado's rivers, above most senior users, calls from senior users downstream are no hardship since leaving the water in the stream is the instream flow right's purpose. And, according to Colorado Supreme Court Justice Greg Hobbs, despite its junior status, the primary purpose of an instream flow right is to preserve stream conditions existing at the time of the water right's appropriation.
The General Assembly gave a boost to instream flow seniority in 1986 when it amended the instream flow statute to allow the CWCB to acquire existing water rights through purchase, donation or grant and change them to instream flow rights, assuming no damage to other users. In 2006, this was expanded to enable even temporary loans of water for instream flows. Since 2001, the Colorado Water Trust has actively scouted out and facilitated such opportunities for the CWCB as part of a larger mission ‘supporting and promoting voluntary efforts to protect and restore the state's streamflows.’

Anyone can propose a stream or lake for instream flow protection, but it then enters a rigorous CWCB vetting process, in consultation with the Colorado Department of Wildlife and the U.S. Department of Agriculture and Department of the Interior. It must be demonstrated that ‘there actually is a natural environment that can be preserved to a reasonable degree with an instream flow, if granted;’ that the decreed right would help maintain that environment; and that the decreed right is only for the minimum flow necessary to ‘maintain the environment to a reasonable degree.’

Despite efforts to ease it gently into the appropriations system, the instream flow law was challenged—first, on its premise that a water right could be created with no diversion structure at all. The Colorado River Water Conservation District argued in court that this was unconstitutional. But the state Supreme Court backed the instream flow law, concluding that the statement ‘the right to divert shall not be denied’ does not say that no right can exist without a diversion.

There were also disagreements in establishing the minimums for protecting streams and lakes ‘to a reasonable degree.’ From the start conservationists did not find the idea of limiting instream flows to minimum amounts to be particularly reasonable. But then some high-altitude water users—primarily ski resorts faced with snow-making needs—found that the minimum instream flows for stream segments whose water they needed seemed unreasonably large, given the small size of the streams that high. And because the minimums were often calculated for the streams at a lower elevation, after they had accumulated some inflow, the CWCB agreed that those flows were too high for the upper reaches. It tried to correct that error by remeasuring the streams above the inflows and adjusting the minimums accordingly.

When the agency adjusted an instream flow right on Snowmass Creek, following a complaint from the new Snowmass Ski Resort, the Aspen Wilderness Workshop challenged the action, saying it was illegally reducing a water right that belonged to the people. The citizen's group lost at first, but the case went to the state Supreme Court, which held that the CWCB did, in fact, have a ‘fiduciary duty’ to the people to enforce rights appropriated in their behalf. The General Assembly then passed legislation requiring the CWCB to publicly announce any proposed decrease, factually justify the decrease, and delay adjustment for up to one year so the public can collect scientific data pertinent to the agency's decision. Underscoring Rozman's observation that the instream flow program is a work in progress, Snowmass Creek now has a very complicated set of season-specific instream flow appropriations on four different segments of the 22-mile stream.

Despite such difficulties, the CWCB has, as of early 2009, developed lake-level rights on 480 natural lakes and instream flow rights on 8,679 miles of Colorado streams, with more entering the system every year, according to Jeff Baessler, deputy director of the CWCB's Stream and Lake Protection group.

Conservation groups have played a significant role in advancing the program's success. The Colorado Environmental Coalition, for example, banded together with 90 partner organizations, including Trout Unlimited, to support passage of HB08-1280, last year's bill removing the historic consumptive use penalty for owners considering long-term instream flow leases with the CWCB. The same was done for short-term leases one year earlier.

Becky Long, the CEC's water caucus coordinator, believes that legislation was one of the biggest changes to the instream flow program since its inception. ‘It was the biggest boulder that needed to be moved. The penalty was blocking the work of the Colorado Water Trust and the CWCB because it didn't make economic sense for someone to lease their water to the state for income, but then watch the ratchet effect of their historic consumptive use credit getting smaller and smaller every year.’

Meanwhile, the struggle to establish non-consumptive use rights in the pecking order of water administration has moved on to a new front: recreational in-channel diversions, or RICDs. This began in Fort Collins on the Cache la Poudre River. In the early 1990s, city park managers wanted to modify an existing diversion dam by adding a boat chute for kayakers, and they applied for an instream water right, claiming the chute constituted a new diversion structure for an economically beneficial recreational use. The water court granted the decree, which was challenged by the City of Thornton. But the Colorado Supreme Court decided the structure did, in fact, meet the criteria of controlling the flow of the river and affirmed the water court.

The City of Golden followed by filing for a substantial 1,000 cubic-foot-per-second water right for its own recreational park in Clear Creek, adding and rearranging rocks to provide challenges for kayakers and other boaters. When the water court also approved its full request, the State Engineer challenged, perhaps fearing the edge of a slippery slope. Again, the Supreme Court affirmed the decree, and Vail, Breckenridge, Aspen and Littleton jumped in with similar requests.

At that point, the legislature stepped in to bring some governance to what traditionalists decried as water rights based on moving rocks around in the river. First came Senate Bill 216 in 2001, which was strengthened in 2006 as part of Senate Bill 37. The legislation gave the CWCB input into the water court's adjudication on all such applications to evaluate whether a RICD would 1) promote the maximum beneficial use of Colorado's water, 2) impair Colorado's ability to fully develop its compact entitlements, or 3) adversely impact CWCB instream flow water rights. The statute also limited the RICD to the minimum flow necessary for ‘a reasonable recreational experience’ —language growing familiar regarding non-consumptive water uses.

Thus does the world become a more complicated place on the ground, especially in mixed traditional and amenity economies like Rozman's district on the Upper Gunnison or District 38 across the Elk Mountains in the Roaring Fork valley, administered by Rozman's counterpart there, Bill Blakeslee.

Blakeslee has been the Roaring Fork water commissioner for eight years, but like Rozman, has known most of the traditional users for much longer. He speaks respectfully about the extent to which ranchers and other longtime valley residents make his job easier by essentially ‘running the rivers themselves, sharing it out’ in dry times rather than asking him to impose strict priority with senior calls on juniors.

But instream flows make his job more interesting—especially when compounded by a transitory population of newcomers in the valley's upper reaches. Last fall, for example, when streams dropped dramatically in a dry autumn, the CWCB placed calls six different times for instream flows on Hunter Creek, a heavily used stream that joins the Roaring Fork in the immediate Aspen area. Several irrigation ditches draw from Hunter Creek, but Blakeslee observes that condos and castles have replaced crops and cows on much of the stream. On one of the ditches, he says, ‘The new gold is ponds,’ and they're not ponds to be used for augmentation in dry times but ‘purely aesthetic ponds, and they don't want them dried up in August and September.’

Hunter Creek is also one of the feeder streams for the Fryingpan-Arkansas Project, which exports water from the Roaring Fork valley under the Continental Divide to the Arkansas River Basin in the east. It was, in fact, the threat that the Fry-Ark Project might dry up Hunter Creek that led to some prototypical bypass flows for habitat protection in the 1950s.

Today—to show how complex this can get on a heavily used stream—Hunter Creek has 23 instream flow rights on the 10 miles of stream below the Fry-Ark diversion, ranging in volume from less than 1 up to 16 cfs, on stream segments from one-tenth of a mile long to 6 miles long.

The task of administering instream flow rights in such a situation is complicated by a couple of factors, noted by both Blakeslee and Rozman, who also had an instream flow call to administer last October on his own Slate River. One problem is an inadequate number of stream measuring gauges. Most of the satellite-monitored gauges on instream flow segments are in the lower reaches, which often makes administration affecting junior users above the gauge an educated guess at best, a prospect not appreciated by those whose water is being curtailed. And Amy Beatie, executive director of the Colorado Water Trust, reports the absence of sufficient gauges has foiled some of her efforts to get existing rights changed to instream flows due to concern from those who might consider contributing additional water to the program.

Baessler acknowledges this problem, noting that ‘data is the core of water administration.’ The agency has been pushing hard to address the problem over the past five years since the legislature created a stream gauge fund. But the fund's annual allocation of $250,000 doesn't go far. The satellite-monitored gauges are expensive—$20,000 to install and as much as $14,000 a year to operate and maintain each one—and the CWCB has 1,473 instream flow segments to monitor. Baessler is currently exploring new, more affordable cell phone technology for stream gauges, but there are also considerable expenses associated with maintaining existing gauges in cooperation with the U.S. Geological Survey and the state's Division of Water Resources.

Another challenge stems from the fact that the commissioners in the Upper Gunnison and Upper Roaring Fork tributaries are administering rights in an environment of exurban subdivisions rather than irrigated farmland. Curtailing a junior water user on an irrigation ditch is a simple matter of dropping the slide on a head gate. But most of their junior users now are homeowners served by wells rather than ditches—dozens of wells instead of a few ditches. Rozman hopes ‘it never comes down to having to go house-to-house, knocking on doors and telling people I'm there to turn off their pumps.’

Property owners with non-exempt wells must have augmentation plans to replace water they use out of priority with water from some other supply. But augmentation water can be expensive—in Rozman's District, $3,500 for one-twentieth of an acre foot, enough for indoor use with no outdoor watering. Not all property owners have complied with the law or even understand the reason for it. Blakeslee says, ‘It takes a while to educate newcomers.’
The impetus toward more attention to non-consumptive uses will undoubtedly continue. The Interbasin Compact Committee basin roundtables are currently developing non-consumptive needs assessments, a major undertaking to identify the most valuable recreational and environmental segments of the state's rivers and lakes and to determine how to protect those segments. Additional instream flow rights and RICDs that may stem from this effort will likely add to the burden of water administration, while at the same time rendering the obvious benefits.

Long is quick to remind that such rights should be seen as a tool rather than an inconvenience that must be worked around. And commissioners like Blakeslee and Rozman are generally stoic about the degree to which the effort to adjudicate, measure and protect non-consumptive uses continues to complicate the administration of water rights. ‘It's to protect the river,’ Blakeslee says, and he has no problem with that. But—it is clearly ‘a work in progress.’ q

The process for developing instream flow rights is outlined on the CWCB Web site: http://cwcb.state.co.us/StreamAndLake/LawsRules.

Water Law Resources

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