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Some of our water buffaloes are annoyed by a recent
decision by the Colorado Supreme Court. The court allowed
two water-court decrees, which had been appealed, to stand.
Those decrees granted water rights for recreational
in-stream flows
to Golden, Breckenridge and Vail.
A little history is in order here. Our 1876 constitution
guarantees the right to divert water for beneficial
use.
In general, beneficial use
means
providing some economic value,
as in irrigating a
barley field or powering a stamp mill.
Back then, there wasn't a recreation industry, so there wasn't any significant economic value in leaving the water in the stream.
Times have changed, though. White-water rafting, kayaking, fishing, just watching the river go by, with or without kayakers in it -- these are all important to many towns' economies, including Salida's.
So, the beneficial use
question seems like a
no-brainer. In many places, there is is substantial
economic benefit in having a certain amount of river flow
in a certain area at certain times of the year.
The other constitutional issue is diversion.
If
you run part of the river into a ditch that goes to your
hay field, that's clearly a diversion. If you put rocks
into the river channel to make it more attractive to sport
boaters or anglers, you're changing the river's natural
course. But is that really a diversion
?
So far, our water courts have held that it is, and have granted water rights accordingly.
As our economy has changed, so has our understanding of
diversion
and beneficial use.
But those two
fundamental principles of our 1876 water doctrine
remain.
Beyond that, a recreation in-stream flow is pretty much the same thing as one traditional type of water right, at least as far as other water users are concerned. That traditional right is for hydro-electric generation. It both cases, no water is consumed, and after the right is applied across a specified course of the river, the regular flow continues.
So if Colorado water law has been able to accommodate hydro power, what's the problem with recreational in-stream flows? Why are the buffaloes snorting?
It's a matter of flexibility and priority dates. Under
our Doctrine of Prior Appropriation,
a water right
has a date. If there's not enough water to go around, then
those with newer dates (junior rights
) have to quit
diverting until those with the older dates (senior
rights
) get their water.
The recreational in-stream flow rights are quite new, with priority dates of 2001 or the like. Since these rights are so junior to other rights, and can't be exercised in such a way as to damage existing water rights, where's the problem?
The answer is so complex that an example is the best way to explain it. We'll start with the Example River, which flows through the Colorado town of Fort Springs. A few miles below town is the Generation Ranch, which has an 1871 right to divert 300 cfs from the Example River, downstream from Fort Springs, during irrigation season.
In 2003, Fort Springs builds a water-play area in the Example River as it flows through town, and gets a recreational in-stream flow right to 500 cfs during the summer.
Obviously, this 2003 water right won't hurt the Generation Ranch's 1871 water right. But one day, the Generation family decides that it's time to give up on rising at 5 a.m. on 40-below February mornings to feed the cattle, since there's another option: clipping coupons in the Bahamas after they sell out.
So they convey the property, including the water rights, to the Upscale Vista Development Co., which in 2005 announces plans for an amenity-laden rural subdivision.
But Upscale Vista discovers a problem -- the ranch ditch
takes water out of Example River below the Fort Springs
sewage treatment plant. That didn't matter when it just
irrigated hay fields, but now water quality is more
important. Upscale Vista could solve this problem by moving
its point of diversion
for its 300 cfs to a spot
that is upstream from Fort Springs, and piping the water to
the subdivision.
After all, Upscale Vista has an 1871 right, and the Fort Springs flow right is dated 2003, But this is 2005, and under state law, this change could not impair any rights that were senior to the change. This means the 2003 Fort Springs recreational flow right to 500 cfs is protected against any reduction caused by the 2005 change in point of diversion for an 1871 water right.
Thus some real-estate development schemes might be thwarted by recreational in-stream flow rights, and this may explain why some of our water buffaloes are alarmed by water rights that don't consume a single drop.
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