Senate Bill 212 Transcript: Exhibit A-B

Home Browse Search

- . y bate in 1986 a city filed for preservation of minimum flows in the Poudre River through its municipal boundaries, assertedly for recreation. and dilution of pollution. Then early in 1987 an individual and .a newly formed association filed for minimum flows through a twenty -four mile reach of the Colorado River and the reach of the Blue River from Green Mountain Reservoir to its con- fluence with th-e Colorado River. This may only be the start of a rash of water rights filings by cities, organizations and individ- . uals who, for some reason or other, wish to command _.the _.flow. of streams for their own aims, without proceeding through the admin- istrative and statutory provisions for an instream flow appropri- ation by the Water Conservation Board. Colorado is not riparian water law state. The Board's instream flow program is carefully defined and narrowly circum -. scribed as an effort by a prior appropriation 'State to keep a specified amount of water in streams for environmental purposes. This very careful piece of legislation needs to be reaffirmed, so that those who desire to see flows preserved between specific points on a particular stream 'Will be required to make a convincing presentation to the Water Conservation Board and work through the Board's administrative and judicial procedures. As I mentioned, in Senate Bill 91, the .'General Assembly in 1986 decided to allow the Board to accept water rights or interests in water which had been created for other uses, so that the Board could change the use and employ the water as part of its instream flow program. This provides the vehicle for a city-or interested persons -or organizations to'work with the Water Con- servation Board's instream flow program, rather than making unauthorized filings in the Water Court. Senate Bill 212 recognizes that those who provide water to the Board in this fashion may contract with the Board to maintain and. enforce instream flows. While the Water Conservation Board is the 'only person or entity authorized by Colorado law to make instream flow appro- priations, federal law may be the basis for the United States to preempt state law and establish a federal water right for minimum flows or lake levels, such as happened in. the Nevada desert pupfish case, Cappaert v. United States When I introduced Senate Bill 2'12 I included language allowing for appropriations by the United States under Colorado law in order to prevent the primary purposes of federal land reservations and wilderness areas from being defeated. I felt that this would help avoid controversies over federal reserved water rights, by providing an appropriation alternative under state law for instream flows in the United States. However, I have come to the conclusion that this language is-premature. There are still cases being litigated in the courts regarding the extent of federal water rights for instream flows in the national forests and wilderness areas under federal law. There -3-