Instream Flow Q & A Session: Part Two
Q: A long-time HCCA member recently wrote us about Coal Creek, asking why someone could “dry up” a creek to the point where it was “virtually dead.” We tried our best to answer his questions and thought that we would share some of that answer here.
A: Western water law has long favored water uses that involve taking water out of the natural stream and applying that water to legally defined “beneficial uses”. When ranchers and irrigators began to develop the valley, they diverted water for irrigation and stock watering. These uses were- and still are- considered beneficial under Colorado law. Irrigators could continue to appropriate available water for beneficial uses to the point that there was no longer any water left in a stream. At the time, there was no legal mechanism to keep water in the natural stream because instream flows were not included in the legal definition of beneficial use.
Legislation was passed in the 1970s to enable the protection of instream flows. Instream flows are water rights designed to keep water in the stream to provide for environmental or recreational needs, including swimming and fishery needs. However, even after instream flows have been appropriated for a stream, “senior” diversions must be fulfilled before instream flows can be enforced. This means that those first rights appropriated for ranching and irrigation in the valley are senior to most instream flows in the Gunnison basin. This is why irrigators with senior water rights can still fully exercise their rights even if it may cause a stream segment to temporarily “dry up”.
Q: How are instream flows protected or enhanced under Colorado water law?
A: In the 70s legislation was passed in Colorado to permit the Colorado Water Conservation Board the exclusive authority to appropriate water rights for instream flows. The Colorado Water Conservation Board, or CWCB, can also acquire interests in water (including leases) to apply towards natural stream and natural lake level protections. Thus, although other water rights can be appropriated by individuals, instream flows can only be appropriated by the CWCB.