On Leaving Water in Rivers

·      Instream flows are water rights that preserve minimum river flows, typically with junior priority dates dating from 1973 when the Colorado legislature said that water can be left in the river for the river’s sake. In low-flow periods late in the irrigation season, instream flow rights rarely keep more water in rivers because water rights with earlier priority dates can keep diverting.

·      Instream flows that have a priority date before 1900 amount to only 0.3 percent of the water used in agriculture. Nearly all were donated to the Colorado Water Conservation Board, or CWCB.

·      The CWCB, whose mission is to develop Colorado’s water resources, administers instream flows. It has an annual budget of only $1 million to acquire instream flows. Five state agencies must be consulted whenever a new instream flow is proposed. It’s expensive and time consuming to designate instream flows in Colorado.

·      Colorado’s instream flow statute has been amended 17 times since it was passed in 1972 and has more text than the Colorado River Compact that governs the entire Colorado River.

·      To appropriate an instream flow, the CWCB must find a natural environment exists that can be improved (i.e., the river does not regularly dry up); water is available for the instream flow; and no other water rights will be injured.

·      Instream flows can only be designated on rivers that have river gages to monitor instream flows. On January 1, 2025, the US Geological Service USGS monitored only 359 active river gages in Colorado, about six per county.

·      If an irrigator leaves water in the river by foregoing irrigation or by installing sprinklers, the state engineer cannot protect the water savings as an instream flow, except in special circumstances. Any other irrigator upstream or downstream can divert irrigation efficiency savings left in the river.

·      Historic irrigation rights can be repurposed as an amenity for private subdivisions, thereby continuing the historic practice of keeping water out of river channels.

·      Fixing the instream flow law is how we can fix Colorado’s depleted rivers.

In January 2014, I attended a program in Denver celebrating the 40th anniversary of Colorado’s instream flow law. The event was held in the ornate courtroom used by the Colorado Supreme Court a few blocks away from the state capitol, and was moderated by Supreme Court Justice Greg Hobbs, who relished talking about Colorado water law.

Officials with the Colorado Water Conservation Board, which administers the state’s instream flow program, noted that the 1973 law was one of the first passed in the nation. And they boasted that it has protected about 30 percent of the stream and river miles in the state. An instream flow is a continuous flow of water measured in cubic feet per second that runs down a stretch of river. In a report called “Colorado’s Instream Flow Program—How It Works and Why It’s Good for Colorado,” two CWCB officials had written that Colorado has “perfected more permanent water rights than any other [western] state; in fact, more than most other [western] states combined.”[i]

The 2015 statewide Colorado Water Plan produced by CWCB also noted that since 1973 the CWCB has appropriated instream flow rights on 1,595 stream segments covering 9,180 miles of streams and 476 natural lakes.[ii] In the subsequent 2023 Colorado Water Plan the numbers increased to more than 1,700 stream segments covering 9,800 miles and 482 natural lakes. The numbers sound impressive, but they mask just how ineffective instream flow rights can be in late summer or during dry years. I knew from my research that most of those water rights are so junior, and that the CWCB is so reluctant to place a call to enforce instream flows, that the instream flow program amounts to little more than window dressing, at least regarding how much water is left in the state’s streams and rivers. But at the event celebrating the instream flow program, speaker after speaker waxed on about how effective it was.

Gail Schwartz, my state senator and a resident of Snowmass Village, was sitting in the row ahead of me in the courtroom. We had worked together on legislation, and she knew how I felt about the instream flow program. She turned and urged me to stand up and say something. Despite practicing law for thirty years, it was the first time I had been in the wood-paneled Supreme Court courtroom. So I was intimidated when I stood up and pointed out the major flaw in the instream flow program: it is filled with junior water rights that have yet to cause much water to be left in a given river or stream. I also said we shouldn’t get too carried away about how wonderful the program is since instream flow rights with priority dates before 1900 amount to under 0.3 percent of the water diverted out of streams for agriculture in a typical year. This is still true today.

And I described how Pitkin County had just spent about $300,000 to defend in water court an instream flow right it was donating to the CWCB, an exorbitant sum to protect less than 3 cfs in a four-mile stretch of the Roaring Fork River.

The room hushed.

I was now the proverbial skunk at the garden party. And I didn’t feel like I was winning any friends among the assembled policy makers, lawyers and engineers. It is, unfortunately, a familiar feeling for me. When I point out at a water meeting (I’ve been to hundreds) that the way we manage water in Colorado leaves rivers and streams last in line for their own water, and that there are multiple ways we can leave much more water in our rivers and streams and still irrigate as much land as we do today, I can often feel the “water buffaloes” bristling.

Given as I want to leave more water in the state’s rivers, it might seem odd that I’m a critic of the state’s instream flow program. But my major complaint is that the program is not robust enough. It is hardly doing anything to leave water in the state’s heavily diverted rivers and streams. I love the concept, but I just want to see the state’s program make a difference. In Colorado, most instream flows are either too junior or too small to be effective. I totaled up all instream flow donations in 2014 that have a priority date before 1900, and again in 2024, and they amount to 0.24 percent of the stream flows diverted for agriculture, as I said in the conversation that day.[iii] That means that 99.76 percent of historic agricultural water rights have priority over the instream flows held by the CWCB.

Consider that of the 112 instream flow rights the CWCB had acquired through 2012 with a priority date before 1900, 71 percent are for 5 cfs or less, and 84 percent are for river reaches of five miles or less. In 2008 the legislature began allocating $1 million per year to the CWCB as part of its annual “projects bill” to acquire instream flow rights, but this is a paltry sum when water sells for nearly $75,000 an acre-foot in Colorado.[iv] Acquired instream flows are uncommon, making up only about 3 percent of all instream flow rights in Colorado.[v] The rest of the instream flow rights were created by water court decrees that are later than 1972, so low on the pecking order that they rarely leave any more water in the river. About the only time instream flow rights are met in Colorado is when there is so much water flowing down the river in the spring that water right holders can’t use it all.

Another problem with instream flows is that they necessitate a court trial to prove up consumptive use, the ultimate measure of a water right. Practically no one leaves water court, where water rights are changed, with more water than they started with, and landowners who donate instream flows to the CWCB are likely to see their historic water rights ratcheted down in the process. That is what happened to Pitkin County when it tried to leave 4.3 cfs as an instream flow in the Roaring Fork River from a ditch that formerly irrigated hay fields where the Aspen-Pitkin County Airport is today. Colorado Springs is the majority shareholder in the Twin Lakes Company, which diverts up to 625 cfs from the Roaring Fork River and its tributaries to the east slope through the Twin Lakes-Independence Pass tunnel above Aspen. It argued that the farmer who sold the water right to Pitkin County had historically used less the 4.3 cfs, so Pitkin County settled the water court challenge by reducing the instream flow to about 3.1 cfs for two miles, 2.8 cfs for the next two miles, and then to just .5 cfs for thirteen more miles until the confluence with the Fryingpan River in Basalt.[vi] Pitkin County spent several hundred thousand dollars on attorneys and engineers responding to Colorado Springs’ water-court challenge. Since Colorado Springs’ 2013 budget was $228 million and Pitkin County’s was $73 million, Pitkin County’s estimated $300,000 expense was not about to bankrupt it.[vii] But most every other water right holder in the Roaring Fork Valley—and Colorado for that matter—knows about this case, and they do not want to repeat Pitkin County’s experience, which is not uncommon. They will think long and hard before donating their water rights to the CWCB to protect river health.

Governmental Review

A private party just can’t just treat a water right as an enforceable instream flow—instead, five Colorado government agencies must be involved in every instream flow right. Colorado Parks and Wildlife must recommend that an instream flow is appropriate, the state attorney general must apply for the instream flow right in water court, a water court must adjudicate it, the CWCB must hold legal title to it, and the state (water) engineer must administer it. But if the private party wanted to instead sell that water right, not for an instream flow, only water court among these five agencies is typically involved, and then only if the water right is changed. In short, it’s much harder to convey an instream flow than to simply sell a water right. In fact, it is one of the hardest things to do in Colorado water law.

The public likely believes that public agencies administer instream flow laws to protect the public’s interest in rivers, but they often amount to window dressing. University of Colorado law student David Gillilan and Thomas Brown, an economist at the Rocky Mountain Research Station administered by the U.S. Forest Service, point this out in their 1997 book, Instream Flow Protection. “Unfortunately, most states so far seem to assign instream flow protection activities to public agencies for just the opposite reason—to discourage rather than encourage instream flow protection,” they write. “The desire of states to retain control over water resources is frequently behind efforts to oppose, or at least treat with great caution, the whole notion of instream flow protection.”[viii]

When Colorado adopted its instream flow program in 1973, that was the first time a river could be legally protected here, nearly 100 years after Colorado was admitted as a state. Biologists and the public prefer the term “environmental flows” when describing flows to preserve the river and riparian corridor. But in a nod to prior appropriation law that defines water rights in terms of river flows that can be captured and diverted, the technically correct term for an environmental flow in Colorado is “instream flow.” It is also inappropriate to refer to “minimum” instream flows, as that invites disapproval because it suggests rivers can be flat-lined with the same minimum flow for much of the year, which many are.

Until 1965 the Colorado Supreme Court held it was illegal to leave water in the river to protect the environment.[ix] In that case, the Colorado River District wanted to divert water into a stream to support a fish hatchery and to keep enough water in a stream so the public could fish. The court held that preserving river health was not a beneficial use, a decision that helped spur the Colorado legislature to pass the instream flow law eight years later in 1973. Instream flows are adjudicated in water court like any other water right, and they receive a priority date as of the date adjudicated. But since the most senior Front Range river rights were appropriated in the 1860s and 1870s, and Western Slope river rights in the 1880s, an instream flow appropriated after 1973 is so far down the pecking order that it cannot provide meaningful protection to streams. As a result, most instream flows barely improve river health. To remedy this, the CWCB can accept donations of instream flows, thanks to several hard-fought amendments to Colorado water law over the past thirty years. Pitkin County and the cities of Boulder and Aspen are among the rare public water right holders who have taken advantage of this.[x]

Further limiting the usefulness of the instream flow statute, only consumptive water rights can be donated to the CWCB. If crops consume only 2 of the 10 cfs diverted to flood-irrigate a field, only 2 cfs can be preserved as an instream flow. The 8 cfs that is not consumed, the non-consumptive flow, can continue to be diverted out of the river.

The Colorado statute permitting instream flow donations is one of the longest and most confusing among Colorado’s hundreds of water statutes. It is longer than the 1922 Colorado River Compact that divides nearly 15 million acre feet between seven states and Mexico and dozens of tribes.[xi] The gist is simply that water can be left in the stream to benefit stream health, but the simplicity ends there. It has been amended in 1979, 1981, 1985, 1986, 1987, 1994, 1996, 2000, 2001, 2002, 2003, 2006, 2008, 2012, 2013, 2018, and 2020—the legislature has revisited this statute in at least 17 sessions—and today is barely intelligible to all except the attorneys and engineers who regularly practice in the area.

Before it can accept an instream flow, the CWCB must find three conditions: a natural environment exists, typically evidenced by a cold-water fishery; water is available to be appropriated, based upon water right and hydrologic investigations performed by CWCB staff and the experts they hire; and no other water rights will be materially injured. The last requirement mollified irrigators who demanded any new instream flow appropriations must remain junior and have no impact on their senior water rights.

The CWCB must determine that the river can be preserved or improved to a reasonable degree. That historically prohibited it from accepting any instream flow donations on a river like the South Platte since it dries up repeatedly between Commerce City and Nebraska, making it pointless to accept an instream flow to protect it. The CWCB must also find that a natural environment can exist without injuring existing water rights.[xii]

In 2020 the legislature amended the instream flow statute to permit the CWCB to obtain an instream flow as a water “augmentation plan” in order to augment river flows. An augmentation plan authorizes a party to divert water out of priority as long as replacement water is available to substitute for the diversion. The 2020 legislature had one particular river stretch in mind when debating the bill, the Poudre River between Fort Collins and Greeley where the river commonly dries up in six separate reaches. Colorado Parks and Wildlife scientists recommended flows of 10 to 114 cfs to “preserve” the river, and from 10 to 260 cfs to “improve” the river (260 cfs is barely enough to float a kayak, and then only on narrow rivers).[xiii]

In April 2021, attorneys for the Cache La Poudre Water Users Association, CWCB, Northern Water, the Colorado Water Trust, and Fort Collins, Greeley, and Thornton filed an application for a water augmentation plan in hopes of keeping the Poudre River from drying up. By May 2024, 62 court filings later, the case had still not settled. It is with a touch of irony that I report this, since the Colorado Doctrine, reputedly the purest rendition of “prior appropriation” in the West, was added to the Colorado Constitution in 1876 after Fort Collins Agricultural Colony dried up the Poudre River, preventing water from reaching the Union Colony downstream in Greeley despite the fact that Union Colony had formed earlier and had an earlier water right.[xiv]

When Denver Water signed the CRCA in 2010, it agreed to provide 1,000 acre feet to the Fraser River as an instream flow. That’s 1,000 acre-feet, not 1,000 cubic feet per second or cfs—1,000 acre feet amounts to a continuous flow all year long of only 1.4 cfs, a continuous flow of water about the diameter of a basketball. Denver Water filed an “environmental flow application” in water court on November 23, 2011, to establish ground rules for when the CWCB could call for the instream flow—such as when the river reached temperatures approaching 70 degrees. By the time the case settled in 2016, 369 separate filings had been made in the case!

The water court decree mandated that the Division 5 Engineer shepherd the instream flow down the Fraser and Colorado rivers as far as the “15-Mile Reach,” where the Colorado River meets the Gunnison River in Grand Junction, so other users would not swipe it.[xv] I have long advocated that the higher-up instream flows are in a basin the more valuable they are since they can benefit the Colorado River system all the way down to the Utah state line. Unfortunately, this is often not the case, since an instream flow can only be protected in river reaches that have court-decreed instream flows. If a reach does not have an instream flow decree, other junior water right holders cannot be prevented from diverting the instream flow for their own use.

Another hurdle is that the CWCB will refuse to appropriate instream flows if there are no river-level gages on the river reach to monitor them. Again, I see the point, but it is a limiting factor, as many potential instream flow segments are in short reaches on smaller tributaries, where gages are scarce. Concerned citizens I know have offered to pay for additional river gages in the Roaring Fork drainage, but the state Department of Natural Resources turned them down. Engineer Louis Meyer, who directed the Colorado Basin Roundtable’s 2015 draft Basin Implementation Plan, says Colorado needs, “A real time water measurement system to measure every drop of water diverted from rivers and put to beneficial use. If you cannot measure it, change in water use won’t occur.”[xvi]

A bigger issue is that since only the CWCB can hold instream flow rights, it alone can protect them by requesting that the state engineer enforce them, in what’s known as a “call.” Statewide, the CWCB made forty-seven instream flow calls between 2010 and 2017, and sixty-seven administrative calls between 2017 and 2023.[xvii] It made six of those calls on the Crystal River between 2017 and 2023, and five on the Roaring Fork River. It is something of a paradoxical situation that instream flows must be managed by the CWCB, since the agency’s original mission is to develop the state’s waters for beneficial use—that is, to divert it from the river into an irrigation ditch or to store it behind a dam.

The CWCB’s original charge from the state legislature in 1937 was to build irrigation districts and reservoirs and, to a lesser extent, flood control. Protecting and developing water, commonly described as “conserving” water, means holding it back in dams and diverting it for mining, irrigation, or municipal purposes. To “conserve” water in this context is not to enhance river health as in “conservation” of a resource, but to use it. And this theme of using the state’s water is clear throughout the CWCB’s enabling statute.[xviii] According to state law, the CWCB’s first duty is “to foster and encourage irrigation districts, public irrigation districts, water users' associations, conservancy districts, drainage districts, mutual reservoir companies, mutual irrigation companies, grazing districts, and any other agencies which are formed under the laws of the state of Colorado, or of the United States, for the conservation, development, and utilization of the waters of Colorado.”[xix] It’s original mission was to use the water, not leave it the river. The CWCB has softened this on its website, where now it says its mission is “to conserve, develop, protect and manage Colorado’s water for present and future generations.”[xx]

On Irrigation Efficiency

One suggestion I make is to start defining instream flows as the water that remains in the stream after using efficient irrigation practices and diversion structures. And by recognizing our streams are over-appropriated, we could stop any further appropriations so that Western Slope residents get past their paranoia that any water left in the river will somehow be “wasted” by flowing downstream or, worse, swiped by the Front Range or California.

Gail Schwartz, who spurred me to stand up in the Supreme Court courtroom that day in 2014, was no stranger to the hurdles that come with an effort to reform irrigation practices so more water can be left in Colorado’s rivers and streams. In 2013 Schwartz introduced Senate Bill 13-19. It encouraged Western Slope ranchers to adopt efficient sprinkler irrigation systems so they could reduce the amount of water diverted from streams, thereby leaving more water as instream flows to improve river health. Irrigators could participate on a strictly volunteer basis. The legislation (nor any other Colorado law) did not force any ranchers or farmers to adopt efficient irrigation systems.

 “Water efficiency” generally refers to making irrigation systems more efficient so less water is applied to fields, even though crop consumption does not decrease. This is done by lining or piping ditches, by installing sprinklers, or by constructing modern ditch structures that only take the minimum amount of water needed to irrigate fields from the stream.

Colorado stream flows can be significantly enhanced by reducing flood irrigation, an outdated practice that floods fields with sheets of water. In flood irrigation, water is typically run through gated pipe, the 6-inch diameter white PVC pipe with 1-inch holes every three feet to release water down crop furrows or onto the field. If an irrigator switched to sprinklers, Senator Schwartz’s bill would have prevented an upstream water right holder from taking that suddenly available “freed up” water as a windfall for use on their fields located upstream.[xxi] If that happened the river would be worse off, since more water would be diverted further upstream and the “hole” resulting from reduced flows in the river would be enlarged, not reduced. The intended effect of Schwartz’s bill was to encourage irrigators and ranchers to upgrade primitive water delivery systems, save water, and then reserve the irrigation water savings to the stream.

The bill created a firestorm. And a real learning experience for me.

First, it was amended to apply only to the Western Slope, leaving the South Platte, Arkansas, and Rio Grande river basins unaffected. Then, the same parties who said the bill should not apply to the east slope disingenuously objected to the legislation on the grounds that it was a bad idea to create legislation specific to only the western part of the state. The part of the bill allowing diversion savings to be preserved as instream flows on the Western Slope was deleted entirely, effectively gutting it. The 2013 bill did permit irrigators who enrolled their land in a conservation program to avoid the accusation that they abandoned their water right if they let their conservation lands lie fallow, so the bill passed with some value.

Schwartz reintroduced an irrigation efficiency bill the next year.[xxii] She acquired the backing of the Colorado Cattlemen’s Association as well as other ranchers, leading many to think it had a chance. Again, the irrigation efficiency bill was one of the most contentious of the 2014 legislative session. And again, it was limited to just the Western Slope. Northern Water, which pumps water over from the Colorado River via Granby Reservoir to Estes Park and Greeley, demanded that the bill only apply when the CWCB had already identified an instream flow on a stream. As described above, this significantly narrowed the bill’s reach since the CWCB will not identify instream flows on reaches that irrigators historically sweep and dry up (for what’s the point of establishing a junior instream flow right on a stream that is consistently swept by senior water rights?). When it looked like the bill could pass, board members on the Colorado River District raised new objections, saying that it would interfere with longstanding informal relationships among irrigators on Western Slope rivers.

Such relationships form when a senior irrigator lower down on a river allows a junior water right holder upstream to divert out of priority, even though they don’t have to. It’s a signal that many irrigators may not need the full complement of their senior water rights, and so can be flexible (but let’s just keep that between us neighbors). If irrigation efficiency savings were donated to the CWCB, some River District board members feared the CWCB might not honor these longstanding informal water-sharing relationships. So, Schwartz amended the bill specifically to permit such work arounds, with a nod and a wink because that amendment overrode the prior appropriation system and arguably violated the Colorado Constitution. Then Gunnison County ranchers objected that it would force them into water court to object that the efficiency savings were not as great as the efficient irrigator claimed, like the objection Colorado Springs made when Pitkin County tried to protect the water that used to irrigate fields paved over by the Aspen airport. Since it would be expensive to go into water court to make this objection, they reasoned, the bill would cost them money and that wasn’t fair.

Under the  current system of managing water rights in Colorado, there is little incentive for an irrigator to spend money on their physical system of delivering and applying water, as a high level of inefficiency is tolerated by the state officials charged with managing both inefficiency and wasting of water. Most irrigators tend to wait until their system breaks down in some way before doing something like piping a ditch that leaks half of the water it carries. But to make expensive improvements strictly for the sake of efficiency means spending money, and it can create the appearance that their water rights have been diminished because they now need to divert less water to continue to irrigate the same amount of land. And while diversion records are not the true measure of a water right, they are often used as a proxy, as land buyers place a high value on diversion records that are as close as possible to the amount allocated in a water rights decree. It’s also why irrigators often refer to their water right, and by inference their diversion records, as their “401-k.”

Behind the scenes, Front Range water providers were equally concerned. If irrigation efficiency savings were dedicated as instream flows, Front Range cities cannot take that water across the Continental Divide. They object to any change to Colorado water law, no matter how slight, if it interferes with their right to purchase water. And irrigators know that cities are the ultimate buyers of their water rights. (This illustrates the principle of substitution. Water can be taken from higher in the basin as long as it is replaced lower in the basin. So Front Range municipalities can move water under the Continental Divide to meet their needs on the east slope, as long as they leave the same amount of water lower on the Western Slope to meet the demands of senior downstream water rights. But it’s not an equitable swap for the river, because there is less water going down the upper reaches of the river system, which means the water is warmer, and water further downstream is degraded because it has picked up pesticides, salts, and emerging contaminants).

In keeping with legislative tradition, the irrigators and cities won, and rivers lost. Despite Schwartz’s 2014 bill being approved by the House and the Senate, then Colorado Governor Hickenlooper vetoed it. It would have been, in my opinion, the most significant legal improvement to river health since the instream flow statute passed in 1973 (the law that’s protecting 0.3 percent of river flows). But Hickenlooper said it would be too divisive and said the state needed to spend more time studying the issue, perhaps by limiting it to pilot projects on a few streams for ten years to see how it worked out. Behind the scenes, the Colorado River District had lobbied Hickenlooper to defeat the bill. The district, whose board members dissed the bill when I described it to them at a board meeting, convinced Hickenlooper that the Western Slope did not want the bill. The Front Range also lobbied to veto it, particularly Northern Water, since water donated as an instream flow could no longer be diverted to the Front Range. The water buffaloes were only too happy to see the bill vetoed. And no pilot program has been started to my knowledge to study this issue. River health is an afterthought for the people who control water in Colorado.

Private Streams as a Beneficial Use

Sometimes trying to leave more water in Colorado’s rivers feels like a lost cause. And ironically, one of the biggest setbacks in the effort came about due to a Supreme Court case called St. Jude’s v. Roaring Fork Club. (St. Jude is the patron saint of lost causes). The resulting legislative response to the court’s decision in the St. Jude’s case makes it even harder to leave more water in the state’s rivers, even with extensive irrigation efficiency measures.

Because a private golf club in Basalt that straddles the Roaring Fork River wanted to use an irrigation ditch as a “spring creek” and a trout-fishing amenity, to help sell memberships and luxury cabins, the state legislature ended up approving a law that can magically turn irrigation ditches into a private “aesthetic” streams. Such “streams” make a very attractive amenity on a luxury ranch and can be protected by a senior water right with an “aesthetic” or “piscatorial” use right embedded in the water decree. The Roaring Fork Club is a private golf course community with fifty hand-hewn log cabins and twelve condominium units along the Roaring Fork River near Basalt. In June 2015, a three bedroom cabin was listed for $3.85 million, while 1/4 time shares in the residence condominiums were selling in 2024 for $915,000 and up. The club has eight fully stocked trout ponds filled with water from the Roaring Fork River and a half-mile irrigation ditch that it calls “Spring Creek” and describes as “an offshoot of the Fork that flows through the golf course.”[xxiii] But as Lake Powell is a reservoir, not a lake, the club’s Spring Creek is an irrigation ditch, not a creek. But it now has an “aesthetic” water right that allows the club to run water through its ditch, if it wanted to, purely as an amenity for private landowners and club members.

The Roaring Fork Club was in and out of water court for over twenty years with neighboring farmer Reno Cerise, a descendant of one of the Roaring Fork Valley’s earliest farming families that started emigrating from northern Italy in the late 1800s. In the 1990s, the club sought to move an irrigation ditch on Cerise’s property so it could better use the ditch near the luxury cabins it was building, but Cerise refused. The original language in the 1876 Colorado constitution guarantees diverters a right-of-way across public and private land to construct ditches and canals.[xxiv] But, the constitution limits this to water used for domestic needs, irrigation, mining, and manufacturing. Cerise claimed this doesn’t apply to watering a golf course and filling ornamental trout ponds. The Colorado Supreme Court eventually agreed in 2001 that the developer had access but scolded the Roaring Fork Club for barging across Cerise’s property to move the irrigation ditch. The court held that future developers had to get court approval if the burdened landowner did not agree to move the irrigation ditch.[xxv] A decade later, the club was back before the Colorado Supreme Court, this time to claim it had the right to divert water into aesthetic water features.

Arguing it could divert water from the Roaring Fork River for “a private fly-fishing stream” as an amenity for its guests, the club got the attention of the entire state water community. The Colorado Attorney General wrote an amicus curie brief opposing the diversion. An “amicus curiae” (literally, friend of the court) is someone who is not a party to a case or solicited by a party, but who assists a court by offering information that bears on the case. The Attorney General represents all state agencies involved in water matters, including the CWCB, the state engineer though the Department of Water Resources, and Colorado Parks and Wildlife. The Attorney General claimed the legislature and courts had never before permitted a diversion for strictly aesthetic reasons if it wasn’t also holding water behind a dam.[xxvi] Five law firms including the Boulder firm Porzak, Browning & Bushong also filed an amicus brief on behalf of several “gentlemen ranchers” scattered across the state, who together owned 27,000 acres in five of the seven water divisions. The law firms said water is diverted for fish all the time all over the state. Searching the state water database, they found 9,568 entries listing “fishery” as a decreed beneficial use, 2,133 of which involve ditch rights and springs. They argue that Colorado law grants enough leeway to water judges that they can decide, case by case, what constitutes a beneficial use and how much water is required for such use.

The Attorney General’s brief, on the other hand, says that Colorado statutes permit water to be stored for piscatorial, or fishing, uses such as a fish hatchery. But, expanding this to include all diversions through private property would enable private landowners to divert all the water in a stream into water features they maintain for their private enjoyment. The Attorney General feared that using irrigation ditches for private trout streams could “result in complete depletions of stream reaches for unlimited distances.” As long as no other water right holder can prove injury, a task that is both difficult and enormously expensive, drying up rivers would be perfectly legal if the court agreed with the Roaring Fork Club. If it is legal to dry up streams in Colorado to grow crops, why not extend this right to ornamental rivers coursing through golf courses and gated communities? Agreeing with the club, the judge in Division Five water court said it could. But the Colorado Supreme Court disagreed, ruling that the club’s proposed uses of the water cannot be beneficial because the only purpose they “serve is the subjective enjoyment of the club’s private guests. The flow of water necessary to efficiently produce beauty, excitement or fun cannot even conceptually be quantified.”[xxvii] The Supreme Court also said, “recognition of the club’s proposed uses would substantially undermine the intent evident in the legislature’s instream flow and (recreational in-channel diversion) provisions.”

Sounding like a landowner, the Colorado River District complained that “the decision will adversely impact the future ability of private landowners to increase the value of their property through the construction of water features.”[xxviii] The River District’s mission is protecting water from diversion to the east slope, not building private water features to bolster private land values. Like a long-simmering fire in an underground coal seam, the issue flared up into a full-on blaze, moving to the Colorado legislature in 2016. A bill to permit diversions for aesthetic purposes failed that year, but another draft was reintroduced in 2017.[xxix] The River District supported the 2017 bill, saying that if subdivisions couldn’t divert water out of a stream into their private fishing ditch, that meant the River District couldn’t release water from Wolford Mountain Reservoir into the Colorado River to support endangered fish in the 15-mile reach in Grand Junction. That never made sense to me, nor apparently to Justice Hobbs who wrote an article criticizing the River District’s position in a Denver University law journal.[xxx] In the article, Hobbs said the Supreme Court’s opinion against the Roaring Fork Club in St. Jude’s II “resounds in the limitations against excess diversions, set forth originally in an 1876 ditch law (which states) ‘During the summer season a person shall not run through his or her irrigating ditch any greater quantity of water than is absolutely necessary for irrigating, domestic, and stock purposes to prevent the wasting and useless discharge and running away of water.’”

When I complained to my then state representative, Diane Mitsch Bush of Steamboat Springs, that the bill countering the court’s position would harm river flows, she shrugged and said the state’s environmental organizations didn’t oppose the bill. It passed, continuing a hundred-year trend in Colorado water law that repeatedly finds that diverting water out of rivers is beneficial.[xxxi] But it doesn’t seem fair to me that the richest and most powerful people in Colorado, the people owning fancy riverfront properties, can divert water to the detriment of the public and more importantly, the fish and wildlife that depend on healthy rivers.

If readers still think I’m the skunk at the garden party for criticizing the instream flow program, this masks how I really feel—I think the instream flow law is the perfect vehicle for improving Colorado rivers. It would take a very small tweak to make the instream flow law powerful—all we have to do is allow water left in the river to benefit the environment to stay there. We’re already adding water to the river when we replace flood irrigation with sprinklers or by paying irrigators to cut back on irrigating. We just need to protect the water savings so they stay in the river.

The Colorado River District, the most powerful voice for irrigators on the Western Slope, may be coming to this same conclusion. Since 2015 we have been paying Western Slope irrigators to use less water in irrigation, obliquely known as “demand management” or “conserved consumptive use” or the “system conservation pilot program.” They all refer to the same process, where the federal government through the Bureau of Reclamation pays irrigators in the four Upper Division states to use less water. In 2024, fifty irrigators in the 15-county area that the Colorado River District represents received $509 per acre foot to conserve 16,760 acre-feet of water on 12,212 acres of irrigated land, receiving $8.9 million in all.[xxxii] But the River District is concerned that there is no guarantee that this water makes it to Lake Powell, the whole point of the program. “Colorado law prohibits the diversion of water that is not put to a decreed beneficial use,” Andrew Meuller, general manager of the River District, said in a letter to Amy Ostdiek of the CWCB on January 31, 2024. He continued, “it is likely that water “saved” (i.e., not being diverted/applied), will simply be diverted by the next junior water right in priority or will be put to use and consumed by other water users.”[xxxiii]

The River District has identified the same missing link that Senator Schwartz was trying to add to Colorado water law in the 2013 and 2014 legislative sessions—we need to be able to protect water that is left in the stream by voluntary efforts to make irrigation more efficient, or to irrigate less often or not at all in certain years. And the instream flow statute is the perfect place to add this missing link. It could be the shortest amendment yet to the statute: “Water left in the stream from efficient irrigation improvements or from voluntary reduction in consumptive use is a beneficial use and shall be protected from diversion by all junior water right holders.” Since it is a beneficial use, it eliminates “use it or lose it,” the single biggest impediment to improving stream

Notes, Chapter One

[i] CWCB, “Colorado’s Instream Flow Program—How It Works and Why It’s Good for Colorado,” pg. 5, undated manuscript written by Dan Merriman and Anne Janicki of the CWCB Stream and Lake Protection Section. Also, see “ISF Law, Stories About the Origin and Evolution of Colorado’s Instream Flow Law in this Prior Appropriate State,” by Linda Bassi, Susan Schneider, and Kaylea White, University of Denver Water Law Review, Vol. 22, Issue 2, https://dnrweblink.state.co.us/cwcbsearch/ElectronicFile.aspx?docid=211090&dbid=0

[ii] Colorado Water Plan, 2015, Sec. 5, pg. 5-14. See also, Status of Instream Flow and Natural Lake Appropriation, October 2012, CWCB.

[iii] From 2000 through 2010, the USGS reports that Colorado agriculture diverts 12,138,000 acre-feet on average from the state’s rivers, 91 percent of the total surface diversions of 13,395,000 acre feet. "Estimated Use of Water in the United States" for the years 2000, 2005, and 2010, USGS, http://water.usgs.gov/watuse/50years.html. The CWCB reports instream flow donations in cfs for a set period of time, for example .31 cfs from 10/1 through 10/31. “Instream Flow Water Rights Database,” Colorado Water Conservation Board. A continuous flow of 1 cfs over 24 hours equals 1.98 acre-feet. Total instream flow donations of water rights with priorities before 1900 amount to 29,000 acre-feet, 0.24 percent of average agricultural diversions of 12,138,000 acre-feet.

[iv] Longmont farmer Carol Oswald Yoakum sold 63 acre feet for $4.7 million, an average price of $74,603 per acre foot, amounting to 90 units of Colorado Big-Thompson water managed by the Northern Colorado Water Conservancy District, on February 14, 2024. Sackett H., “Auction of Colorado River water nets $4.7m,” Aspen Journalism, Feb. 23, 2024, https://www.thefencepost.com/news/auction-of-colorado-river-water-nets-4-7m/

[v] Gould A., Ryan K, Weaver, C., “Flow Restoration in Colorado,” The Water Report, Issue #214, Dec 15, 2021, p. 14.

[vi] Conversation with Pitkin County Attorney John Ely, Nov. 4, 2013.

[vii] Colorado Springs 2013 budget.

[viii] Gillilan, D., Brown, T., 1997, Instream Flow Protection, pgs.127-129 (Washington D.C.: Island Press).

[ix] In Colorado River Water Conservation District v. Rocky Mt. Power Co., 158 Colo. 331, 406 P.2d 798, 800 (Colo. 1965), the court said, “There is no support in the law of this state for the proposition that a minimum flow of water may be ‘appropriated in a natural stream for piscatorial purposes without diversion of any portion of the water ‘appropriated’ from the natural course of the stream.”

[x] See the CWCB’s database listing of instream flows that have been donated (and occasionally acquired) to the CWCB. These instream flow rights have appropriation dates as of the adjudication date, which can never be earlier than 1973.

[xi] CRS Section 37-92-102 (3) and (4) total 2,435 words, longer than the Colorado River Compact with 1,911 words.

[xii] CRS § 37-92-102(3)(c).

[xiii] CPW, “Flow Quantification Report for the Cache la Poudre River in Larimer and Weld Counties,” Oct. 2020, reported on page 6 of the Cache La Poudre Water Users’ augmentation plan filed April 29, 2021, in Weld County District Court, Case no. 2021CW003056.

[xiv] Id., “Flow Restoration in Colorado,” pg. 11. Union Colony was established in March 1870 by Nathan Meeker in order to establish a religiously oriented utopian community of "high moral standards" in what is now Greeley. It was financially backed and promoted by New York Tribune editor, Horace Greeley; Wikipedia, downloaded 6-9-2024.

[xv] District Court, Water Division 5, Case No. 2011CW152, Findings of Fact, Conclusions of Law, Judgment and Decree for Multi-Purpose Water rights, Storage, Exchange, and Substitution, dated March 1, 2016, paragraphs 8.5 to 8.7, pages 15-16.

[xvi] Email to the author January 4, 2024.

[xvii] CWCB Instream Flow Administrative Calls, downloaded 5-24-2024, https://cwcb.colorado.gov/instream-flow-administrative-calls .

[xviii] Colorado Revised Statutes (CRS) Section 37-60-106(1)(a)

[xix] Id.

[xx] CWCB website, About Us, accessed November 18, 2017.

[xxi] SB 2013-19.

[xxii] SB 2014-23.

[xxiii] “Roaring Fork Club,” downloaded March 21, 2016.

[xxiv] Colo. Const. art. 16, § 7: Right-of-way for ditches, flumes. All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.

[xxv] Roaring Fork Club v. St. Jude’s Co., 36 P.3d 1229 (Colo.2001).

[xxvi] CRS Section 37-92-103(4) defines “beneficial use.” It says that water can be stored for “recreational, fishery, or wildlife purposes,” or that it can be required to be left in the river to bolster instream flows and for recreational in channel diversions. It does not say that water can be diverted into private water features if it isn’t being stored. This is the basis of the court’s holding in the 2015 St. Jude’s decision.

[xxvii] St. Jude's Co. V. Roaring Fork Club, 351 P.3d 442, 451 (Colo. 2015).

[xxviii] Gardner-Smith, B., “Colo. Supreme Court rules against private streams,” July 1, 2015, The Aspen Times, http://www.aspentimes.com/news/colorado-supreme-court-rules-against-private-streams/.

[xxix] HB17-1190, adding new section 20 to CRS Section 37-92-305(20). The new law says that the holding in St. Jude’s II, which held that diversions for fishing streams that do not hold back water in a dam are not permitted under Colorado water law, cannot be applied to any decrees issued prior to the holding in St. Jude’s II.

[xxx] Hobbs, G., “St. Jude Revisits: Commentary on the Interplay of Ditch Rights, Prior Appropriation Water Rights, and Colorado’s Disavowal of Riparian Rights,” Denver Univ. Water Law Review, Vol. 19, Issue 2, Pg. 179.

[xxxi] H.B. 17-1290

[xxxii] System Conservation Pilot Project Program (SCPP) 2024 report by David Kanzer, PE, Director of Science and Interstate Matters, Colorado River District, to the Colorado River District Board of Directors, available at pdf page 223 in the April 16-17, 2024, Board of Director meeting agenda.

[xxxiii] Colorado River District letter from Andrew A. Mueller, General Manager to Amy Ostdick, Section Chief, Interstate, Federal, and Water Information Section, CWCB, titled, “Comments on the 2024 System Conservation Pilot Program Applications,” January 31, 2024, available at pdf page 226 in the April 16-17, 2024, Board of Director meeting agenda.