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-4- INSTREAM FLOWS Natural Flows Unprotected From the earliest days, the purpose of water law in the West has been to get water out of streams. The diversion of water for mining, agriculture, and domestic use was sanctioned by the law. However, water left in the stream-called "instream flow"- •was said to serve no one, and was given no legal recognition. This ignored, of course, the vital role natural flows play in the maintenance of riparian habitat ° Without legal protection, water for fish and wildlife, s~*n**>;*-g, boating, aesthetic enjoyment, and spiritual renewal, was up for grabs to the next diverter. Conservationists have fought for decades to win the right to protect instream flows. The struggle has been played out in state after state, but the battle in Colorado is one of the most colorful. Take the case of Empire Water and Power Co. v. Cascade Town Co.' No other lawsuit more poignantly captures the inanity of the law's refusal to recognize instream flow rights. Cascade Town was a small, turn-of-the-century resort set at the base of Pikes Peak in Colorado. The court described vividly the efforts of the town's founders to build a community around a small natural wonder: [T]hey have constructed hotels there and built cottages, roads, and trails on its land extending up through Cascade Canon .... The canon and falls are rare in beauty and constitute the chief attraction. Without them the place would not be much unlike any other part of Ute Pass. The orlon is abut three-quarters of a mile long and very deep; its floor and sides are covered with an exceptionally luxuriant growth of trees, shrubbery, and flowers. This exceptional vegetation is produced by the flow of Cascade Creek through the canon and the mist and spray from its falls. Some of the falls are as much as 30 feet in height a From its beginning the city flourished. fifteen thousand visitors a year found solace in the canyon's falls. Then, in 1910, the Empire Water and Power Company devised a plan to dam the headwaters of Cascade Creek, divert the entire flow into a tunnel, and generate hydroelectric power. The town, outraged that this might be done after ao much had been invested in the community, brought suit. Cascade charged that it was entitled to a senior water right in the falls, just as a senior irrigator is protected against someone diverting water before it reaches the senior irrigator's headgates. The court expressed sympathy, but 'Water dcee more than keep fish wet. It is the basic building block of the entire riparian ecosystem. The river environment is shaped by the flow regime, often ranging from a trickle of water in the summer to a torrent in spring. When that natural cycle is disrupted by dams and diversions, river habitat responds dramatically. Peak flows no longer clear vegetation and widen the channel. Sediment no longer feeds the bed and banks. Nutrients are lost from the food chain. Wetlands dry up. And with all this change, the native flora and fauna dependent upon the natural system often disappear. The result is streams that no longer are capable of su~~+~n~'ng the network of life they once supported. Catastrophe then multiplies when mother nature unleashes her occasional deluge on a river ao longer resilient. When a real flood hits the narrow, overgrown channels and dried up wetlands left behind by man's diversions, the destruction can be enormous. 'Emuire Water and Power Co. v. Cascade Town Co.. 205 F. 123 (8th Cir. 1913). 'Cascade Town, 205 F. at 124-25.