Cast forward on instream water rights
Sparkling waters, silvery fish, the dip of a paddle, curling waves, still holes with last fall’s leaves swirling deep down on the bottom.
My, do we love our rivers in the West.
But because this is the West, water is also highly political. It tends to flow toward money, even over mountains.
While we use a lot of our state’s water for irrigating fields and orchards and for running industry and cities, we love to see it flowing down streams and rivers.
That’s why, 29 years ago, the Colorado Legislature added a new facet to state water law: instream flow water rights. Legislators ordered the Colorado Water Conservation Board, a state agency, to secure instream flow rights in high country streams at the minimum levels needed to keep a cold water trout fishery thriving.
By the close of 2001, the state water board protected flows in more than 8,000 miles of streams and water levels in 475 natural lakes. Although there have been some disputes over the agency’s diligence in protecting those rights when they are threatened, the program has proved to be a success.
Now, water activists want to take river protection in Colorado a step further.
Last year, environmental and angling groups proposed a plan to allow private parties and other governmental agencies to file for and hold instream flow water rights. Until now, such action has been strictly limited to the state water board.
If private parties and other governments can hold instream rights, more rivers can be protected for more purposes, such as recreation, scenic beauty, other wildlife and healthy riparian ecosystems.
The groups found a friendly legislator, state Sen. Ken Gordon, D-Denver, to carry the bill, introduced as Senate Bill 156.
Gordon may as well have tried to float the Shoshone run in Glenwood Canyon on a couple of foam noodles.
Gordon’s brave bill was kept alive only by the support of passionate anglers and environmentalists who bent the ear of Gov. Bill Owens, and Gordon’s own willingness to dramatically water down the proposal.
Today, the proposed bill would allow the owners of existing absolute water rights – those water rights already in use and fully recognized by the courts – to convert them to instream flows.
Such a change of use would be subject to review by the state water board and state engineer, subject to challenge by other water rights holders, and subject to proof that the change won’t injure other users or hamper the state’s ability to meet its obligations to deliver water to downstream states.
Nonetheless, if Gordon’s bill passes, it would be possible for a water rights owner to, for example, make technical improvements to an irrigation ditch so less water is needed, and convert the remainder of the water right to a permanent and protected instream flow.
This version of the bill has passed the state Senate, and is now awaiting the judgment of the House Agriculture Committee.
Our own legislator, state Rep. Gregg Rippy, R-Glenwood Springs, sits on that committee. This newspaper urges Mr. Rippy and all his House colleagues to cast a decisive vote in favor of S.B. 156.
The bill does not take the dramatic and much-needed step forward originally envisioned. But it does take a step in the right direction.
Once legislators and water users see that allowing private parties and governmental entities other than the state water board to hold instream flow water rights can really work, they may be willing to take the next steps.
In the meantime, S.B. 156 gets this newspaper’s hearty endorsement.
– Heather McGregor, Managing Editor
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