Colorado’s (and other

States’ Tools for Protecting Instream

Flows

Ted Kowalski, Chief Interstate, Federal & Water

Information Section Colorado Water Conservation Board

April 15, 2014

Denver, Colorado

Patty Wells City & County of Denver

Alan Hamel Arkansas Drainage

Dianne Hoppe South Platte

Drainage Geoff Blakeslee

Yampa- White Drainage

Travis Smith Rio Grande Drainage

April Montgomery San Miguel- Dolores- San Juan Drainages

Russell George Colorado Drainage

John McClow Gunnison- Uncompahgre

Drainages

Ty Wattenberg North Platte

Drainage

Ex-Officio Members:

Mike King, DNR Director (voting) -- John Suthers, AG (non-voting) -- Dick Wolfe, State Engineer (non-voting)

John Salazar, DOA Director (non-voting) -- Bob Broscheid, CPW Director (non-voting) -- James Eklund, CWCB Director (non-voting)

Colorado Water Conservation Board

Legislature established ISF Program in 1973 (Senate Bill 97)

• Recognized “the need to correlate the activities

of mankind with some reasonable preservation of the natural environment”

• Vested the CWCB with the authority “on behalf of the people of the state of Colorado, to appropriate or acquire … such waters of natural streams and lakes as may be required to preserve the natural environment to a reasonable degree.”

SB 73-97 established instream flow and natural lake level water rights as:

• In-channel or in-lake appropriations of water

• Made exclusively by CWCB

• To preserve the natural environment to a reasonable degree

• For minimum flows between specific points on a stream, or levels on natural lakes

• Administered within the State’s water right priority system

Bill also authorized CWCB to acquire water for ISF use

Senate Bill 73-97

• Bill introduced in response to federal imposition of bypass flows on West Slope (Fry-Ark project)

• Wanted to maintain state control over water in Colorado

• ISFs provided a way to protect water in the stream past point of bypass

Beaver Creek – Grand County

1986 – Senate Bill 91

• Directed CWCB to request recommendations from federal agencies prior to initiating ISF appropriations and acquisitions

• Introduced in response to proposed federal wilderness legislation

• Intended to show feds that state ISF Program could achieve federal stream protection goals (with federal input)

– New appropriations – Acquisitions of water for ISF use

1992 – 15 Mile Reach ISF

• Rec’n from USFWS to maintain and enhance Colorado pikeminnow habitat and contribute to “sufficient progress” under the Recovery Program

• Seasonal ISF of 581 cfs July – September (reduced from FWS rec’n of 700-1,200 cfs)

UPPER COLORADO RIVER ENDANGERED FISH RECOVERY PROGRAM

• Recovery strategies include – conducting research – improving river habitat – providing adequate streamflows – managing non-native fish – raising endangered fish in hatcheries for stocking

• CWCB contributes through – use of the Colorado River Decision Support System for depletion

accounting – involvement in programs that enhance spring peak and later

summer flows in designated critical habitat through voluntary reservoir operation coordination

– funding – program oversight

MOUs with Federal Agencies U.S. Forest Service / DNR / CWCB:

• Original MOU in 2004; renewed in 2009

BLM / DNR / CWCB:

• Original MOU in 2005; renewed in 2011

Both MOUs: • Establish framework for state and feds to

cooperate on water issues on federal lands within Colorado

• Identify steps to integrate fed/state activities concerning protection and management of riparian resources and ISFs on federal lands

Ongoing collaboration with federal agencies • Discussions with BLM about making

recommendations on streams where basin roundtables have identified environmental attributes

• Exploring potential ISF recommendations from NPS

• Encouraging USFS to bring ISF recommendations to CWCB

• Working with stakeholder groups on alternatives to Wild and Scenic designation that include ISFs to protect ORVs identified by federal agencies (fish and other water dependent species)

Legal Recognition of Instream Flows (ISF) State ISF Legally Recognized Special Status as a Beneficial Use for ISF water right Alaska Yes Yes Arizona Yes Yes California Yes Yes Colorado Yes Yes Idaho Yes Yes Kansas Yes Yes Montana Yes Yes Nebraska Yes Yes Nevada Yes No New Mexico Yes No North Dakota No No Oklahoma No No Oregon Yes Yes South Dakota Yes No Texas Yes Yes Utah Yes Yes Washington Yes Yes Wyoming Yes Yes

Number of Instream Flows per State

Number Zero 1-10 11-50 51-100 101-500 >1000 of Instream NM, ND, NE, UT AK, KS AZ, ID MT, WA OR, CO Flows OK ND NV WY

Recreational In Channel Diversions • RICD statutes require that RICDs:

– are only for the minimum stream flow for reasonable recreation experience in and on the water;

– must divert, capture, and control the flow; – are placed to beneficial use.

CWCB’s Required Findings • CWCB reviews all applications for RICDs on behalf of

the State of Colorado.

• CWCB makes findings of fact about whether the RICD would: – “materially impair the ability of Colorado to fully

develop and place to consumptive beneficial use its compact entitlements.”

– “cause material injury to existing ISF water rights.” – “promote maximum utilization of the waters of the

State.”

• Numerous factors to be considered are listed in Rules

Highlights of Senate Bill 06-037

• Applies to applications filed after May 11, 2006

• Continues to allows CWCB full participation in court case

• Requires design by a Professional Engineer • Limited to non-motorized boating • RICDs limited from April 1 to Labor Day

– unless demand demonstrated

CARBONDALE

BUENA VISTA

PITKIN COUNTY

AVON

Average Daily Flows (------) From 1974-2000

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200

400

600

800

1,000

1,200

1-Oct 1-Nov 1-Dec 1-Jan 1-Feb 1-Mar 1-Apr 1-May 1-Jun 1-Jul 1-Aug 1-Sep

Month

Stre

amflo

w (c

fs)

OTHER STATE TOOLS

• Recovery Programs

• Colorado Tamarisk Control Grant Fund

• Salinity Control Forum

• Wild and Scenic Alternatives

• Minute 319

http://cwcb.state.co.us/environment/

Questions?