Private Means to Enhance Public Streams

• Publication year: 2004
• Pages: 69
• Citation: Vol. 33 No. 4 Pg. 69

33 Colo.Law. 69 Colorado Lawyer 2004.

2004, April, Pg. 69. Private Means to Enhance Public Streams

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69

Vol. 33, No. 4, Pg. 69

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 69]

Specialty Law Columns
Natural Resource and Environmental Notes
Private Means to Enhance Public Streams
by Michael F. Browning

This column is sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics

Column Editors

Maki Iatridis of The Hannon Law Firm, LLC, Denver (Environmental) - (303) 861-8800, miatridis@hannonlaw.com Kevin Kinnear of Porzak Browning & Bushong LLP, Boulder (Water) - (303) 443-6800, kkinnear@ pbblaw.com; Gus Michaels, Boulder (Mineral) - (303) 442-3688, grmichaels.iii@justice.com

Michael F. Browning
About The Author:

This month's article was written by Michael F. Browning, Boulder, a partner at Porzak Browning & Bushong LLP - (303) 443-6800, mfbrowning@pbblaw.com.

There is a widely held perception among water lawyers, water leaders, and water users that there is little they can do to enhance instream flows or the associated environmental values. This is due to the exclusive authority of the Colorado Water Conservation Board ("CWCB") to appropriate instream flow rights in Colorado.1 However, many tools are available under existing Colorado law that can be used by private parties, nonprofit organizations, and governmental entities other than the CWCB to promote and enhance instream flows, fish, and wildlife habitat in and near Colorado's streams.

This article presents a brief overview of some tools that may be used to advance environmental values associated with Colorado's public streams. Specifically, the article addresses the following: channel and off-channel enhancements, conveyances to the CWCB, recreational
in-channel diversions, dry-year and split-season leases, loans to CWCB, subordination and forbearance agreements, water banking, land conservation easements, ditch lining, diversion structures, storage operations, and recharge projects.

Channel Enhancements

A major purpose of instream flows is to enhance fish populations, quality, and habitat. These same benefits often can be achieved without adding any additional water to the stream by physical stream corridor restoration or enhancement work. In fact, such work is often more effective than increased stream flows.

An increasing number of Colorado landowners and conservation organizations are recontouring and reconfiguring stream beds throughout the state for this purpose.2 Hundreds of miles of Colorado streams already have benefited from such work. The science (and art) of stream channel enhancements has improved over the last few decades and the number of professionals specializing in this area has increased.

Stream beds often are shallow and broad, without adequate pools or spawning areas to promote fish populations. Stream corridor improvements can: (1) reshape stream channels to make favorable changes in the stream cross-section profile; (2) add pools and other water features to provide feeding and spawning habitat; and (3) otherwise enhance the piscatorial environment. Such changes usually lead to significant increases in fish populations, even without adding any water to the system.

Before performing such work, it is necessary to obtain permits from the US Army Corps of Engineers® ("Corps") under Section 404 of the Clean Water Act.3 The Corps is normally receptive to such work, especially if it is professionally designed and implemented.

Off-Channel
Enhancements

Off-channel enhancements also may be effective. For example, old irrigation ditches can be physically converted into "fishways" to provide fish a safe haven from spring runoff or storm events. A ditch's water right can be converted from irrigation to piscatorial use and still maintain its historical priority. The historical consumptive use associated with the irrigation right can be converted into augmentation credits to offset the out-of-priority evaporative losses associated with ponds along the new fishway that provide additional areas for spawning and feeding.4 Alternatively, historical consumptive use credits may be sold or leased to others to offset all or part of the cost of the off-channel enhancements. Old oxbows, now cut off from the channel, also can be reopened and turned into additional fish habitat.5

Conveyance to the CWCB

As noted above, the CWCB was granted by statute the exclusive authority in Colorado to appropriate minimum stream flows on Colorado rivers.6 However, the CWCB's minimum stream flow authority was not enacted until 1973, and the CWCB's rights take their place in the normal priority system. Thus, the CWCB's rights are junior to all previously decreed water rights and cannot prevent the diversion of senior rights, even when the stream flows fall below the decreed minimum flows. As a result, the desired minimum stream flows on many streams cannot be maintained during times of critical low flow, a situation all too evident during the 2002 drought affecting Colorado.

In recognition of the junior nature of the CWCB's instream flow water rights, the CWCB was given statutory authority to acquire existing water rights and interests in water by grant, purchase, donation, lease, or other contractual agreements (but not eminent domain).7 The CWCB can use any funds available to it for such acquisitions, with the exception of monies from the construction fund. Nonetheless, although the CWCB has acquired and converted some water rights to instream flow purposes,8 the program has little funding and much remains to be done.

CRS § 37-92-102(3) also gives the CWCB the authority to enter into creative and flexible agreements with water users, because it allows the CWCB to acquire not only water rights, but also "interests in water" by "contractual agreement." Accordingly, water right owners need not divest themselves of all interests in their water; they can retain many rights and uses. For example, the city of Boulder agreed to use certain of its senior rights to make up any shortage between actual stream flows in Boulder Creek through the city and the CWCB's decreed minimum stream flow, thus "firming up" or guaranteeing the junior instream flow right.9

Boulder retained the right to: (1) use the unused portion of its rights; (2) divert and use its rights at new alternate points of diversion below the stream segment to be protected and (3) use the rights at upstream points for municipal purposes during times of critical shortage. The CWCB and Boulder were co-applicants in the Water Court proceeding that allowed an alternate use of the rights for instream flow purposes, as well as alternate points of...