The Legal Evolution of Colorado's Instream Flow Program
| Publication year | 1988 |
| Pages | 861 |
| Citation | Vol. 17 No. 5 Pg. 861 |
1988, May, Pg. 861. The Legal Evolution of Colorado's Instream Flow Program
Water law in the early West developed with little regard for the benefits created by free-flowing waters in this arid region. The Prior Appropriation Doctrine rewarded those who acted quickly to divert large quantities of water from rivers and streams. As the decades passed and increasing numbers of important streams were reduced to dry beds, people in the West began looking at ways in which to secure legal protection for free-flowing waters.
The roots of instream flow protection in Colorado extend back to the 1950s during negotiations over the transmountain Fryingpan-Arkansas Project. Controversy arose over operation of this project which transports flows from the headwaters of the Colorado River into the over-appropriated Arkansas River basin of southeastern Colorado. The Project threatened to dry up streams and destroy aquatic habitat important to recreation and fisheries in the Western Slope headwaters. After lengthy negotiations, a set of operating principles was drafted that allowed for specified levels of flow to bypass the transmountain diversion points so as to maintain natural streams in the headwaters.
These operating principles were formally approved by the governor, local water districts, and U.S. Congress. However, Felix Sparks, executive director of the Colorado Water Conservation Board ("CWCB") at that time, was "haunted [that] there was absolutely nothing in our state law to prevent other appropriators from taking these releases as soon as they left the various project diversion points."(fn1) Without additional state statutes to maintain these flows, the protections embodied in the agreement were worthless.
Establishing legal protection for free-flowing waters is a difficult task in a state where consumptive water users, their lawyers and representatives traditionally control the course of state water law. From the start of streamflow protection efforts in the West, irrigators have perceived instream flow laws as threats to their right to use and transfer water entitlements. In the headwater state of Colorado, this attitude has been reinforced by decades of battles to minimize the amount of water flowing to downriver states. Therefore, Director Sparks and other water interests who perceived the need for some form of instream flow law to augment the Fryingpan-Arkansas agreement knew they had a difficult task.
In 1973, following many rounds of negotiations and a "somewhat unholy alliance"(fn2) between environmental organizations and the CWCB, the Colorado legislature was persuaded to enact Senate Bill ("S.B.") 97 that established a state instream flow program. This bill empowered the CWCB to appropriate instream water rights on behalf of the public and to enforce these rights against proposed diversions. As expected, the bill was attacked by water user interests and was quickly tested in the Colorado Supreme Court.
This article discusses S.B. 97 and the streamflow efforts it set in motion. It also describes the initial authorization of Colorado's instream flow program and its survival in the Colorado Supreme Court, as well as subsequent legislation that has refined the program. The article concludes with a brief look at the considerations needed for charting the course of future instream flow law in the state.
The 1973 Colorado General Assembly amended existing state water law with S.B. 97 to create an instream flow program. It changed the definition of "beneficial use," eliminated the need to "divert" water to obtain a priority and added...
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