MetroSouthPlatteInterimBasinWaterSupplyNeedsReport (2)

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Section 4 Legal Framework for Water Use -- result, increased efficiency of use under an augmentation plan potentially reduces the amount of credit a water user receives for water returned to the stream unconsumed. 4.2.6 Instream Flows Under the 1969 Act, the CWCB is authorized to appropriate water for "minimum stream flows or for natural surface water levels or volumes for natural lakes to preserve the natural environment to a reasonable degree."37 Appropriations for instream flows may only be made by the CWCB, not by private individuals (however, it is noted that a few private instream flows were obtained in the early 1970s upon initial passage of the statute, but this is no longer allowed under the law), and must be made within the priority system, consistent with the restrictions in Sections 5 and 6 of Colorado's Constitution. The CWCB can also acquire water rights for instream flows "by grant purchase, donation, bequest, devise, lease, exchange, or other contractual agreement." 38 In recent years, Colorado's legislature has expanded the resources available to the CWCB to protect instream flows. In 2002, the legislature increased the sources of funding that the CWCB may use to acquire water for instream flows, to include "any funds available to it, other than the construction fund created in section 37-60-121, for acquisition of water rights and their conversion to instream flow rights.39 In 2003, the legislature amended S 37-83-105, C.R.S., which provides for temporary loans or exchanges of water between water users in times of drought without requiring adjudication of a change of water rights, to allow the CWCB to receive loaned water for instream flow purposes on a temporary basis, not to exceed 120 days, in any basin where the Governor has declared a drought or other emergency.40 Such loans are subject to a determination by the State Engineer that other water users will not be injured. It is essential that the state be able to acquire water rights for instream flow purposes in order to protect wildlife and the environment in a prior appropriation state during times of drought. Since Colorado water law does not allow the state to consider environmental factors in 37 CR5. S 37-92-102(3). 38 Id. 39 See id 40 House Bill 03-1320. CONI 4-6 allocating or administering water, the only way for the state to ensure protection of stream flows for public purposes is by acquiring water rights, itself, within the priority system. By acquiring a water right with an enforceable priority, the state can place environmental concerns on equal footing with agricultural, commercial, municipal, and other uses of water. This means that in times of scarcity, the state's instream flows will be protected in a manner consistent with their priorities - to the extent the priorities are junior to other water rights, the CWCB's instream flows will be curtailed to make water available to other senior water users, and to the extent the CWCB's priorities are senior, the CWCB may request the Division Engineer to curtail more junior users to protect its instream flows. In Colorado, recreation is a recognized beneficial use. Governmental entities can appropriate water solely for the purposes of recreation and boating. Recent enthusiasm for kayaking, and the appropriation of water for in-channel use, has sparked further debate among water users regarding this use of water. For example, the City of Golden pursued an application for an in-channel water right for a kayak course. Golden sought to appropriate 1,000 cubic feet per second (cfs) for this purpose, which essentially equates to all the water in Clear Creek during peak flow in most years. On appeal, the Supreme Court, from which one member recused himself, split equally, so that the water court's decree adjudicating this issue was affirmed. In reaction to various claims for in-channel recreation rights, the General Assembly enacted legislation limiting the right to appropriate RICDs to municipal entities for "minimum streamflow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures for a reasonable recreation experience in and on the water." 41 Applicants for such rights now must forward their application to the CWCB for review.42 After reviewing the application, the CWCB makes a recommendation to the water court on whether the application should be granted, granted with conditions, or denied. 43 41 S 37-92-103 (10.3), C.R.S. 42 S 37-92-102(5), C.R.S. 43 Id. S:\1177\Basin Reports\South Platte\S4_South Platte.doc