Private instream flows threaten state’s water law | TheFencePost.com

Private instream flows threaten state’s water law

Colorado Farm Bureau

If a bill endorsed by Trout Unlimited and several other environmental organizations becomes law, for the first time in the history of Colorado water law, a private party would be able to hold a water right that is not consumptive and does not involve a diversion.

Colorado Farm Bureau, along with a number of other water users, believes that a privately held instream flow is not only unnecessary, but will waste valuable and scarce state resources.

Senate Bill 156, sponsored by Sen. Ken Gordon (D-Denver), would allow a senior water rights holder to petition the water court for a change in use to an “instream flow.” As with any other change case, anyone who is injured by the change in use could file an objection with the water court. The bill would apply only to senior adjudicated water rights.

“SB 156 is a radical departure in Colorado water law,” said Ray Christensen, executive vice president, Colorado Farm Bureau. “Permitting private parties to change water rights for instream use will have far-reaching and unintended effects on the state’s constitution as well as the administration and use of water in the state.”

During the Senate Judiciary Committee meeting, Colorado Farm Bureau expressed serious concerns about the impact that the proposed instream flows could have on winter return flows. Winter return flows are dependent on summer irrigation and late season return flows are critical to maintaining winter base flows and trout habitat.

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“The current Instream Flow Program allows the Colorado Water Conservation Board to balance the interests of the environment and water users,” Christensen said. “If instream flows are created in the water courts, there is no opportunity to balance the larger policy issues that surround instream flows.”

Colorado’s Instream Flow Program was created in 1973 and remains an active, successful program. The state, under the guidance of the Colorado Water Conservation Board, holds absolute water rights on more than 8,000 miles of stream and 475 natural lakes. In total, Colorado holds more than 490 cubic feet per second and 3,500 acre feet of senior water rights that were acquired for environmental protection.

Currently, the Instream Flow Program allows private water right owners ” as well as special interest groups ” to convey water to the state through a contract for instream use; all while retaining ownership of that water right.

The bill passed the Senate Judiciary Committee on a 4-3 vote and is pending in the Senate Appropriations Committee.