tion. The General Assembly gave a boost to instream flow seniority in 1986 when it amended the instream flow statute to allow the CWCB to acquire existing water rights through purchase, donation or grant and change them to instream flow rights, assuming no damage to other users. In 2006, this was expanded to enable even temporary loans of water for instream flows. Since 2001, the Colorado Water Trust has actively scouted out and facilitated such opportunities for the CWCB as part of a larger mission “supporting and promoting voluntary efforts to protect and restore the state’s streamflows.” e
Anyone can propose a stream or lake for instream flow protection, but it then enters a rigorous CWCB vetting process, in consultation with the Colorado Department of Wildlife and the U.S. Department of Agriculture and Department of the Interior.
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Anyone can propose a stream or lake for instream flow protection, but it then enters a rigorous CWCB vetting process, in consultation with the Colorado Department of Wildlife and the U.S. Department of Agriculture and Department of the Interior. It must be demonstrated that “there actually is a natural environment that can be preserved to a reasonable degree with an instream flow, if granted;” that the decreed right would help maintain that environment; and that the decreed right is only for the minimum flow necessary to “maintain the environment to a reasonable degree.” Despite efforts to ease it gently into the
appropriations system, the instream flow law was challenged—first, on its premise that a water right could be created with no diversion structure at all. The Colorado River Water Conservation District argued in court that this was unconstitutional. But the state Supreme Court backed the instream flow law, concluding that the statement “the right to divert shall not be denied” does not say that no right can exist without a diversion. There were also disagreements in establishing the minimums for protecting streams and lakes “to a reasonable degree.” From the start conservationists did not find the idea of limiting instream flows to minimum amounts to be particularly reasonable. But then some highaltitude water users—primarily ski resorts faced with snow-making needs—found that the minimum instream flows for stream segments whose water they needed seemed unreasonably large, given the small size of the streams that high. And because the minimums were often calculated for the streams at a lower elevation, after they had accumulated some inflow, the CWCB agreed that those flows were too high for the upper reaches. It tried to correct that error by remeasuring the streams above the inflows and adjusting the minimums accordingly. When the agency adjusted an instream flow right on Snowmass Creek, following a complaint from the new Snowmass
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