Instream flows at 40
Revolutionary water program in Colorado has roots locally
Originally published 2013-07-25
With water exceedingly scarce in Colorado, how can fragile ecosystems ever be protected — especially with so many competing demands for the finite resource?
One answer to that question lies in an initiative that in 2013 reached its 40-year anniversary — a program that has its roots in similar efforts in the Gunnison Basin, no less.
Colorado’s Instream Flow Program — the first of its kind in the West — was established by a law passed by the Colorado legislature in 1973, though it took six years to subsequently survive legal challenges.
A pair of water leaders in Colorado described the program’s history and evolution during a talk last Thursday as part of the 38th annual Colorado Water Workshop at Western State Colorado University.
It was an appropriate topic at this year’s workshop — the theme of which was “Planning for the New Normal” — given that 40 years ago, the implementation of the Instream Flow Program introduced a “new normal” by challenging the assumption that water must be diverted for a right to be granted.
“The program provides the legal foundations for a new understanding of the value of water that goes beyond direct human uses,” said Jeff Sellen, director of the Water Workshop.
The law set up a regulatory framework for establishing water rights that depict minimum flows in a stream or levels in natural lakes. Under the program, only the Colorado Water Conservation Board (CWCB) can hold those rights.
But one local woman traces the program’s roots back to a meeting among three visionaries at Rocky Mountain Biological Laboratory (RMBL) in Gothic in the mid-1960s.
“Instream flow has it’s origin with the question ‘Why?’ over a glass of wine,” said Gunnison’s Scottie Willey, a longtime RMBL researcher.
‘Extensive flow protection
in our basin’
While the intent of the 1973 law specifically aims to protect the environment to a reasonable degree, secondary benefits have resulted “for fisheries and for recreation,” said Upper Gunnison River Water Conservancy District (UGRWCD) General Manager Frank Kugel.
“There’s extensive flow protection in our basin,” he added.
Linda Bassi, chief of CWCB’s Stream and Lake Protection Section, said during last week’s Water Workshop talk that to date more than 9,000 miles of streams have been protected by instream flow rights across the state — in addition to levels in 480 natural lakes.
Of that, 2,110 stream miles are contained within Colorado’s Water Division 4 (which contains the Gunnison Basin) — more than any other of the seven divisions in the state. To pare the data down further, 129 segments comprising more than 778 miles of stream are within the Gunnison Basin upstream of Blue Mesa Reservoir.
As a result of the Instream Flow Program, other non-consumptive rights — such as Recreational In-Channel Diversions (RICDs) — have followed.
Similar to instream flows, RICDs provide minimum flows necessary for a reasonable recreational experience. They were first recognized legislatively in Colorado in 2001.
Legislation sets the path
Following the passage of the instream flow law, prominent Colorado water attorney David Robbins worked to ensure that the program remained. He was part of a team that filed for instream flow rights on three waterways in the Crystal River Basin — “test cases” for the new law. Each were “headwaters” streams of the type that even today comprise the bulk of protected segments under the program.
Robbins explained during last week’s Water Workshop that most of the water community in 1973 still believed the new law to be unconstitutional.
“It didn’t produce a recognized beneficial use under past case law and statutes,” he explained. “And it would preclude a portion of water from streams from citizens being able to remove that water in the future and apply it to another beneficial use.”
That is, Colorado’s “first in time, first in right” appropriation system did not prior to then provide a widely recognized means of protecting the natural environment by establishing water rights.
Not until 1979 was the Instream Flow Program upheld in state Supreme Court.
Robbins said that the 1973 law was largely in response to efforts already underway at the time to recognize non-consumptive water rights — including in Gothic.
“It’s purpose was in part to blunt the fledgling effort to amend the constitution to recognize instream flows as a recognized use within Colorado,” said Robbins. “We need to be very clear that prior to 1973, it was the generally held view in Colorado that in order to obtain a decreed water right, you had to divert the water from a river.”
Roots in the Gunnison Basin
Today, RMBL still holds numerous non-consumptive rights for water bodies surrounding the laboratory — many of which were first filed prior to the 1973 law’s passage and grandfathered by the legislation.
“We do a lot of research on the streams,” said Executive Director Ian Billick. “If the water’s not there, we can’t do research.”
Scottie Willey recalled the notion of a non-consumptive right — of which an instream flow is one type — in Colorado emerging over a glass of wine in the mid-1960s. She and her husband, former RMBL board President Bob Willey, were entertaining the lab’s attorney, longtime local lawyer and friend of the Willeys Pete Klingsmith.
The topic turned to water law.
“Bob asked Pete, ‘What is all of this business about water rights?” she said. “Pete went into water law and particularly the point that to get a water decree you had to take water out of the water body. Bob looked at him and said, ‘Why? Why do you have to take it out of the water body?’ Pete looked at Bob and said, ‘I don’t know.’”
Ultimately, that question would spur Klingsmith to file for a non-consumptive water right to protect flows over a parcel of land at the base of Galena Mountain — owned by The Nature Conservancy, but which RMBL utilized for its research.
A right was granted, and in the ensuing years, Klingsmith would file for additional non-consumptive rights in bodies of water surrounding RMBL. Numerous rights were filed — and later granted — in the early ’70s, prior to Colorado’s Instream Flow Program being upheld.
Willey believes that it was the realization that non-consumptive rights could “block development all over the state” that ultimately forced lawmakers’ hands.
However, she said that was never the intent for RMBL or Klingsmith.
The benefit of these early, non-consumptive rights was not only for RMBL’s research, said Willey.
“It was for the protection of the stream,” she said.
(Will Shoemaker can be contacted at 970.641.1414 or email@example.com)