Colorado's Instream Flow Program: How It Works and Why It s Good for Colorado

Size: px

Start display at page:

Download "Colorado's Instream Flow Program: How It Works and Why It s Good for Colorado"

Vivien Sutton
6 years ago
Views:

1 Colorado's Instream Flow Program: Fishhook Lake How It Works and Why It s Good for Colorado Cimarron River Colorado Riparian Association Conference October 5-7, 2005 Double Tree Inn, Durango, CO

2 The Colorado Water Conservation Board Created in 1937 To aid in the protection and development of the waters of the state, for the benefit of its present and future inhabitants.

Board Representation Tom Sharp Yampa-White Drainage Robert Burr North Platte Drainage Eric Wilkinson South Platte Drainage John Redifer Colorado Drainage Barbara Biggs City & County of Denver Keith

3 Board Representation Tom Sharp Yampa-White Drainage Robert Burr North Platte Drainage Eric Wilkinson South Platte Drainage John Redifer Colorado Drainage Barbara Biggs City & County of Denver Keith Catlin Gunnison-Uncompahgre Drainages Harold Miskel Arkansas Drainage Don Schwindt San Miguel-Dolores- San Juan Drainages Travis Smith Rio Grande Drainage Ex-Officio Members: Russell George, DNR Director (voting) -- John Suthers, AG (non-voting) -- Hal Simpson, State Engineer (non-voting) Don Ament, DOA Director (non-voting) -- Bruce McCloskey, DOW Director (non-voting) -- Rod Kuharich, CWCB Director (non-voting)

4 In 1973, the Colorado Legislature created the Instream Flow Program with the passage of Senate Bill 97: Further recognizing the need to correlate the activities of mankind with some reasonable preservation of the natural environment, the Colorado Water Conservation Board is hereby vested with the authority, on behalf of the people of the state of Colorado, to appropriate or acquire such waters of natural streams and lakes as may be required to preserve the natural environment to a reasonable degree.

An Instream Flow or Natural Lake Level Water Right is: An in-channel or in-lake appropriation of water (nonconsumptive) Jasper Creek Made exclusively by the Board For minimum flows

5 An Instream Flow or Natural Lake Level Water Right is: An in-channel or in-lake appropriation of water (nonconsumptive) Jasper Creek Made exclusively by the Board For minimum flows between specific points on a stream, or levels on natural lakes To preserve the natural environment to a reasonable degree Administered within the State s water right priority system

6 Since 1973, the Board has appropriated instream flow water rights on nearly 1500 stream segments, covering 8500 miles of stream and 476 natural lakes

7 And accepted 21 water donations or long-term contracts for water totaling cfs and 8,651.7 AF

8 Miles of Stream Protected by ISF Rights in Colorado 20,740 (70.8%) 8549 (29.2%) Note: Total stream mileage is based upon CDOW estimate of 29,289 miles of perennial streams in the state (H. Vermillion, 2001) With ISF Protection Without ISF Protection

9 Statewide Distribution of ISF Water Rights

10 How Does the Instream Flow Program Work? Four Mile Creek Weminuche Wilderness

11 Stream and Lake Protection Program Key Program Areas New Appropriations New junior instream flow or natural lake level water rights to preserve the natural environment Annual consideration and adjudication Biology -- Methodology (CDOW) Water Acquisitions Acquisition of senior decreed water or water rights from willing owners for instream flow use to preserve or improve the natural environment Voluntary transactions considered on an as-offered basis Support Services Colorado Decision Support System (CWCB staff) Water Right Protection Monitors and protects instream flow or natural lake level water rights Seeks protective terms and conditions in water right applications, monitors stream flow, and places administrative calls for water Engineering/ Water Quality (CWCB Engineers and Scientists)

New Appropriation Process CWCB requests recommendations for streams or lakes to be considered for appropriation to preserve the natural environment. ISF Workshop held each February.

12 New Appropriation Process CWCB requests recommendations for streams or lakes to be considered for appropriation to preserve the natural environment. ISF Workshop held each February. Any person or governmental entity may submit recommendations -- must be submitted in writing and with specificity South Fork Cache la Poudre River Recommendations prioritized and added to the Work Plan or Candidate Stream List for processing. Data collected, flow requirements quantified using R2Cross or other standard methodology usually cold water fishery standard, but not limited Recommendations submitted to CWCB for determinations and appropriation Appropriations filed with the Water Court for adjudication.

Can acquire water, water rights or interests in water to preserve or improve the natural environment to a reasonable degree.

13 Water Acquisition Process Works with water right owners on a voluntary basis to protect stream flows in a manner consistent with state law. Transactions considered on an as-offered basis. Can acquire water, water rights or interests in water to preserve or improve the natural environment to a reasonable degree. Can acquire absolute direct flow or storage rights; no conditional water rights. Flexible contracts outline the terms of each transaction. Can acquire water by grant, purchase, donation, bequest, devise, lease, exchange or other contractual agreement. North Fork Mineral Creek CWCB determinations and approval. May require change of use adjudication with the Water Court

ISF Water Right Protection Process Protects the Board s existing instream flow water rights from injury by Legal Protection Reviewing other water right

forward while fully protecting the Board s rights Pursuing litigation if the parties cannot agree on protective terms and conditions Physical Protection

14 ISF Water Right Protection Process Protects the Board s existing instream flow water rights from injury by Legal Protection Reviewing other water right applications for potential injury Filing statements of opposition with the Water Court Developing terms and conditions to allow applications to go forward while fully protecting the Board s rights Pursuing litigation if the parties cannot agree on protective terms and conditions Physical Protection Installing stream gages and monitoring stream flow on critical reaches of stream, and seeking administration by placing calls for rights entitled to receive water.

15 Why Is the Instream Flow Program Good for Colorado? Four Mile Creek Weminuche Wilderness

Colorado Has a Strong Track Record of Protecting Stream Flows and Natural Lake Levels Colorado has been appropriating, acquiring and protecting ISF rights for 32 years it is one of the oldest

16 Colorado Has a Strong Track Record of Protecting Stream Flows and Natural Lake Levels Colorado has been appropriating, acquiring and protecting ISF rights for 32 years it is one of the oldest programs in the west, and remains one of the most active Colorado has committed significant staff and financial resources to the program -- 6 permanent staff positions plus an active internship program Colorado has perfected more permanent ISF water rights that any other western state, and more than most other western states combined. Archuleta Lake

Instream Flow and Natural Lake Level Rights Provide Legal Protection for the Natural Environment Colorado s careful process creates well-defined, fully adjudicated, defensible water rights.

17 Instream Flow and Natural Lake Level Rights Provide Legal Protection for the Natural Environment Colorado s careful process creates well-defined, fully adjudicated, defensible water rights. Instream flow and natural lake rights are administered as any other water right in the state, consistent with Colorado s Prior Appropriation Doctrine. These rights protect flow through a reach of stream, and have legal standing in Water Court to protect against injury at any point within that instream flow reach. North Boulder Creek

New Appropriations Preserve Existing Stream Conditions Under state water law, adjudicated water rights are entitled to stream conditions as they existed at the time of appropriation.

18 New Appropriations Preserve Existing Stream Conditions Under state water law, adjudicated water rights are entitled to stream conditions as they existed at the time of appropriation. Junior priority instream flow water rights cannot affect operation of existing senior decreed water rights. Colorado River headwaters However, junior instream flow rights have standing in Water Court to ensure changes to senior rights do not alter stream conditions to the detriment of decreed instream flow water rights. CWCB negotiates terms and conditions in opposed cases to ensure instream flow rights are protected while allowing the water right change to proceed.

19 Water Acquisitions Provide a Mechanism for Improving or Restoring Flows New statutory authority allows CWCB to acquire water to IMPROVE the natural environment. This expanded authority for water acquisitions allows CWCB to work with water right owners to restore flows to degraded stream systems. North Mineral Creek North Mineral Creek

Water Acquisitions Provide a Mechanism for Temporary or Emergency Instream Flows 2002 drought highlighted need for an expedited water right loan process.

20 Water Acquisitions Provide a Mechanism for Temporary or Emergency Instream Flows 2002 drought highlighted need for an expedited water right loan process. Existing process required Water Court approval; water loans could not be completed quickly enough to meet urgent water needs. New legislation enacted to allow temporary loans of water to CWCB for instream flow use without the need to seek judicial approval. New process provides for timely, administrative review by the State Engineer, and temporary loans of water for instream flows can be completed in an expedited manner. Cochetopa Creek July 2002

Interested parties, federal, state and local representatives and members of the public invited to attend.

21 Program Provides a Mechanism for Identifying and Prioritizing Environmental Needs Annual Instream Flow Workshop held in February to solicit recommendations for stream or lake protection. Interested parties, federal, state and local representatives and members of the public invited to attend. Recommended streams or lakes are prioritized and added to the Instream Flow Work Plan list or Candidate Stream List. San Miguel River In this manner, high resource value or high risk streams or lakes are identified and prioritized for prompt consideration.

Provides an Opportunity for Federal Agencies and Conservation Groups to Accomplish Streamflow Protection Goals in a Manner Consistent with State Law Any person or governmental entity can recommend

22 Provides an Opportunity for Federal Agencies and Conservation Groups to Accomplish Streamflow Protection Goals in a Manner Consistent with State Law Any person or governmental entity can recommend streams or lakes for protection. Entities can lease water rights to CWCB for instream flows to preserve or improve the natural environment. Instream flow water rights provide protection for a reach of stream and are administrable under Colorado water law. May avoid federal bypass flow requirements and costly litigation. Cathedral Creek

23 Instream Flow Program An Opportunity to Build Relationships NPS CWCB: Streamflow Protection for Black Canyon USFWS CWCB: Sub-lease to deliver and protect releases from Steamboat Lake for endangered fish in the Yampa River. USFWS BOR - CWCB: Sublease to deliver and protect releases from the Elkhead Reservoir Enlargement for endangered fish in the Yampa. State - U.S.F.S. MOU (April 2004) State - U.S. BLM MOU (September 2005) Committing to work together on streamflow protection efforts on federal lands to avoid federal bypass flow requirements. BLM CWCB: Long term lease with CWCB to provide water rights for instream flows on Cathedral Creek. San Juan Public Lands Work Group GMUG Forest Plan Revision Pathfinder Project USFS CWCB: Recommendation for new ISF appropriations on Hanging Lake and Deadhorse Creek to preserve unique natural environment.

24 The End Cimarron River

San Juan National Forest/Public Land Management Plan Revisions Governmental Water Roundtable Meeting 4 Aug. 3, 2005

San Juan National Forest/Public Land Management Plan Revisions Governmental Water Roundtable Meeting 4 Aug. 3, 2005 Seated at the Roundtable: Pat Page (Alt), Bureau of Reclamation Bruce Smart, City of