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.. ... InS t I' e et "' Ii;: :. 0 lor 4 ,c 0 ,;.;:;:~~~b::~>~n:::::::::::::::::::::::::::::::::::::: ' , , )i:l\~jj~~~~~k. 1>.<>t~o" 1>.""....... :.:<:" Vel, 4, "''''C$ 3 ~lll 2001 Water Acquisition for Instream Flovvs By Anne Janicki, CWCB staff In our semi-arid state, water is a scarce resource with many competing demands placed on it by an ever-growingpopula- tion. In 1973, the State Legislature recognized the need to correlate the activities of mankind vvith some reasonable preservation of the nat- ural environment and created the Stream and Lake Protection Program (ISF Program) vvithin the Colorado Water Conservation Board to protect streams and natural lakes. Since then, the CWCB has appropriated water rights on 486 natural lakes and over 8400 miles of stream in Colorado. At the same time that the legisla- ture authorized the CWCB to appropriate water to preserve the natural environment, it author- ized the CWCB to acquire water for that same purpose. But, the procedure was vague. The Legisla- ture subsequently passed two bills that clarified the CWCB's authority to acquire water and outlined the acquisition process. Senate Bill 91 (1986) authorized the CWCB to acquire water by "grant, purchase, bequest, devise, lease, exchange or other contrac- tual agreement, from or with any person, including any governmental entity,... water, water rights, or interests in water... to preserve the natural environment." In 1987, SB 212 established a 120-day period for development and approval of an agreement that outlines the terms and conditions of any acquisition, and provided for federal agency participation. These legislative changes for- malized the state's Water Acquisition Pro- gram (W AP). Unlike a new appropriation in which the CWCB claims new junior priority water rights, the WAF allovvs the CWCB to acquire senior priority water rights or interests in water to preserve the natural environment. By working with water right owners through this Program, the CWCB can protect the nat- ural environment on streams where water may not be available for new junior priority water rights. In addition, the CWCB may rely on the acquired senior priority water to sup- plement existing junior instream flow rights up to the amount required to preserve the natural environment to a reasonable degree. The CWCB can only acquire "absolute" direct flow or storage rights. The WAF is a voluntary program. By law, the CWCB is prohibited from acquiring water by eminent domain. The CWCB currently does not have funds to purchase water rights, so it relies primarily on donations and low-cost, long-term leases to acquire senior water rights. The lack of funds has not limited the effectiveness of the WAP. Working with pri- vate water right ovvners, government agen- cies, municipalities and conservation groups, the CWCB has approved 15 donations, 3 leases and one operational agreement. These agreements provide over 390 cubic feet per second and 3,652 acre-feet of senior rights on streams and lakes throughout the state to pre- serve the natural environment. The foundation of any lease or donation under the WAP is the Acquisition Agreement. This is a document developed cooperatively by the water right ovvner and the CWCB staff. It outlines the terms and conditions of the transaction and provides certainty for both the donor/lessor and the CWCB. These terms and conditions typically address the parties' responsibilities in the water court change proceeding (which is required by law), moni- toring of stream flovvs in the subject stream reach, protection and enforcement of the donated or leased water rights, and, as in the Boulder donation, spe- cific reservations for drought or emergency conditions. The CWCB may delegate operational control of the water rights to the donor/lessor while retaining the exclusive right to use the water for instream flow pur- poses. The WAF provides an opportunity for cities and towns to preserve the water-dependent natural environ- ment of streams that flow through their community. In some cases, it may also provide a mechanism for cities and tovvns to address federal permitting issues. To date, three municipali- ties have donated water rights to the CWCB. The City of Boulder donated senior rights to supplement junior instream flow rights on Boulder and North Boulder Creeks. The City of Aspen conveyed water rights to the CWCB for instream flow use on Hunter Creek, and has agreed to modifY the operation of its Cas- tle Creek rights to provide water for the CWCB's junior instream flow_ricl1t. AL<;o. the. City of Steamboat has made storage water available to the CWCB to protect stream flows in Fish Creek. (continued on page 2)