9359

• UCREFRP Catalog Number: 9359
• Author: Trout Unlimited.
• Title: A Dry Legacy
• USFW Year: 2002.
• USFW - Doc Type: The Challenge for Colorado's Rivers.
• Copyright Material: YES

Barriers to Public Participation

For the public, participating in Colorado's water
allocation system can be a daunting task, Unlike other
western states, where agencies i~sue water permits,
in Colorado, water courtS award "decrees" for water
rights. Water users must go through the water court
to obtain a new water right or change an existing one. .
This process is complicated and expensive, requiring .
lawyers and technical experts. In fact, there are more.
water lawyers in Colorado than in all other western
states combined. The expense and complexity of the
system discourages public participation,

Snowmass Creek

The Snowmass Capital Creek Caucus has
learned first-hand the difficulties of becoming
involved in Colorado's water law system. The
group long voiced concerns about diversions on
Snow mass Creek, but its efforts to protect the
creek were unsuccessful until it hired lawyers and
entered into lengthy and costly litigation.

The headwaters of Snowmass Creek are
protected within the Maroon Bells - Snowmass
. Wilderness, but as the stream leaves the
wilderness, it passes near Snowmass Village and
the Snowmass Ski Area, for which water is
diverted from the stream and into the adjacent
Brush Creek drainage. When Snowmass Ski
Area wanted more water for snowmaking, the
Colorado Water Conservation Board (CWCB),
which held an instream flow right for the stream,
decided that their existing 12 cfs winter instream
flow right was too large and reduced it to 7
cfs - coincidentally freeing up the water needed
for the proposed snowmaking. The Caucus
challenged this unilateral action and ultimately
won a reversal of the ewCB action, but only
after having to pursue costly litigation all the way
to the Colorado Supreme Court. Following the
Caucus' legal victory, cooperative studies were
conducted that led to a new variable minimum
winter flow of 8 to 12 cfs.

Not only is public participation difficult~ but
Colorado water courts cannot c<IDsider whether a
water right application is in the .(>ublic interest or has
unacceptable environmental effects, The courts cannot
deny a right because it would dry up a great fishing
hole or degrade an endangered species' habitat. Under
a 1995 ruling by the Coiorado Supreme Court, the
public interest cannot be considered by Colorado's
water courts. Moreover, unlike a number.of other
states, Colorado law does not recognize the public
trust doctrine - under which there is a public right
to have water kept in rivers to maintain fisheries
and navigation.

Unfortunately, even this modest instream
flow right is not consistently met in the winter,
and it is likely to be met even less in the future.
Because the CWCB instream flow is junior to
the ski area's right, diversions by the Snowmass
Water and Sanitation District can drop winter
flows to 4 cfs or even lower. Biological studies
on Snowmass Creek found that these lower flows
drop velocity in the stream below levels needed
for successful incubation of trout, resulting in
a reduction of as much as 63% in spawning/
incubation habitat. At these low winter flows,
ice formation also becomes a major threat that
reduces habitat for fish even more due to
scouring, anchor ice formation, and reduction of
flows as more water freezes, The District and
CWCB have resisted efforts to ensure greater
winter flows and, lacking access to a fair adminis-
trative process for resolving these problems, the
Caucus may once again be forced to pursue
litigation if they wish to protect Snowmass Creek.

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