Colorado Water Conservation Board’s Instream Flow Workshop
Summarized by Margaret Herzog, PE, PMP
The Colorado Water Conservation Board’s (CWCB) 2012 Annual Instream Flow (ISF) Workshop was held at REI in Denver on February 22, 2012. The more than 40 attendees represented a wide variety of interests, including the US Forest Service, the US Bureau of Land Management, the Colorado Dept. of Transportation, the Colorado Div. of Parks and Wildlife, several Colorado Water Conservation Board staff and new board members, The Nature Conservancy, Trout Unlimited, the Colorado Water Trust, Western Resource Advocates, the City of Fort Collins, the Colorado River District, High Country Citizens’ Alliance, consultants, and other interested parties. The workshop went well beyond a review of recommended ISF projects for board consideration this year. It also covered a discussion of potential synergy between ISF appropriations and acquisitions with stream restoration projects and multi-purpose water supply projects. New SWSI 2010 Nonconsumptive Needs Assessment maps and related projects by Basin Round Table (BRT) were also presented, the successful culmination of an Interbasin Compact Committee / Basin Round Tables (IBCC/BRTs) analytical process which began in 2005. Linda Bassi, CWCB Stream and Lake Protection Section Chief, welcomed attendees and outlined the afternoon’s goals.
CWCB Instream Flow Program
Next, Jeff Baessler, Deputy Section Chief, explained how the Colorado Instream Flow Program was created with the passage of Senate Bill 97 in 1973 to preserve the natural environment to a reasonable degree. Previously, administration of the prior appropriations doctrine in Colorado had dictated that all water appropriations had to be diverted from the natural course of the stream for beneficial (consumptive) use. The legislation establishing the ISF Program expanded the definition of “beneficial use” to include the appropriation by the State of Colorado of minimum instream flows between two points on a natural stream or the setting of a minimum pool level for natural lakes to preserve the natural environment to a reasonable degree, which can include maintaining existing cold water fisheries, federally endangered or state listed species, or riparian habitat. Currently, over 9,000 miles of stream and more than 486 natural lakes have been protected, which represents over 30% of the perennial stream miles in the state (Merriman, Dan and Anne Janicki. Colorado’s Instream Flow Program – How it works and why it’s good for Colorado. CWCB: Colorado, 2010). Only the CWCB is permitted to hold ISF rights, which once decreed, are assigned a priority in the year in which they were appropriated, allowing them to be administered within the State’s water rights priority system. Since appropriated ISF rights are very junior (1973 or later), the ISF Program is also permitted to acquire existing, decreed senior water rights or accept temporary loans and leases of water. At least 22 senior water rights acquisitions to the ISF program have been transacted in this way to restore native flows, protect endangered species, and improve the natural environment. All ISF and natural lake level water rights that the CWCB has obtained since ISF Program inception can be found in the Instream Flow Water Rights Database on the program’s website. In addition to the ISF Program discussed at the workshop, Recreational In-Channel Diversions (RICDs) have been permitted under Colorado law since 2001, if they do not impact ISF rights, other existing water rights, or impair the development of CO compact entitlements.
Figure 1. Map of Streams Included in Colorado’s Instream Flow Program, CWCB, 2011 http://cwcb.state.co.us/environment/instream-flow-program/PublishingImages/StatewideISFMap.jpg
In examining the map of ISF water rights above, it is often asked why the lower reaches of some of Colorado’s greatest rivers are not included. Such working rivers do not have as many reaches that can still be considered natural streamflow with intact species and habitat. It may also be harder to prove that water is available in such overappropriated systems, where water rights are also more hotly contested. However, this year, the City of Pueblo partnered with the Colorado Division of Parks and Wildlife to recommend ISF rights for two reaches just below the outflow of Pueblo Reservoir as an urban fishery for both rainbow and brown trout, which also includes state-owned nature areas. It is anticipated that more such partnerships will flourish in the future, as the ISF Program continues to mature. A list of all 2012 recommended ISF appropriations can be found on the CWCB ISF Program website.
In addition to appropriating and acquiring water rights for the ISF Program, staff must also both legally and physically protect the water rights they have acquired to date. All new water right applications must be reviewed and evaluated for potential impacts to ISF rights. If there is a potential for injury to ISF rights, a Statement of Opposition (SOP) will be filed. Over 70 stream gages around the state will alert ISF Program staff if flow approaches or drops below decreed ISF amounts, which can allow them to place an instream flow administrative call to prevent injury to the ISF right, if necessary (CWCB. Monitoring and Enforcement. CWCB: Colorado, 2011). The State Attorney General and the State Engineer and staff from the Colorado Division of Water Resources may help the ISF Program with certain legal and administrative tasks.
New Appropriations Process
The Colorado Division of Parks and Wildlife and the Bureau of Land Management are the two entities that typically make annual recommendations for new ISF appropriations at the annual workshop, often in partnership with local governments, landowners, and community groups. However, anyone can make recommendations. For example, the CWCB’s ISF water right on Little Dry Creek, which flows through the urban areas of Greenwood and Cherry Hills Village, was recommended by a group of homeowners to protect warm water fish species and other local wildlife.
After receiving annual recommendations, ISF Program staff prioritizes the list. Next, they perform site visits to collect more data and conduct further analysis. Many smaller stream segments throughout the state are not gaged to measure streamflow. In some cases, a pressure transducer is installed to monitor increasing pressure as the water level rises and decreasing pressure as it falls. The device is connected to a data logger to record water levels over time, and used to develop flow rating curves. If direct measurements of streamflow cannot be taken, then flows are extrapolated from nearby gauged streams, and adjusted for the stream reach’s unique characteristics. ISF program staff visit with county commissioners and stakeholders and hold public meetings to effectively manage issues and concerns to try to resolve them. Further analysis and discussions result in a summary report upon which the CWCB can base its intent to appropriate when feasible. Three important criteria imposed by statutory requirement include that:
- A natural environment exists,
- The natural environment can be preserved by water available at least 50% of the time (CWCB policy is that ISF flows must be less than or equal to the hydrograph of median daily values – approximately the 50% exceedance value), and
- No material injury to other water rights will occur, including to existing use and exchange practices that may not necessarily represent a decreed water right.
If in spite of careful collaboration with all stakeholders for a negotiated settlement, a proposed appropriation remains contested, the board holds a hearing. In 2011, a proposed San Miguel River ISF from the confluence with the Calamity Draw to the confluence with the Dolores River was contested, so complete documentation of this ongoing legal process is available on the program website.
Sixty days prior to the January board meeting each year, a public notice is sent of the list of rights the board may declare its intent to appropriate. The board’s declaration of intent is made at the January board meeting, so outstanding issues can be resolved by negotiated settlement and parties have plenty of time to contest. After the board takes final action on an ISF appropriation, the water right is filed in Water Court in the same calendar year. Contested appropriations will proceed through the hearing process (ISF Rule 5) until the following September to allow them also to be applied for in water court typically by year’s end, if appropriation is still determined to be the final action.
Unlike perfected water rights, conditional water rights, no matter how substantial, are typically not considered in ISF process determinations, since whether or not the proposed use that would supersede the ISF right will ever be developed or not cannot often be determined.
Stream Restoration: Synergy with ISF Appropriations and Acquisitions
After the ISF process and recommended 2012 ISF appropriations had been reviewed, Chris Sturm, CWCB’s Watershed Protection and Restoration (WPR) program manager, explain to workshop participants how the ISF Program can complement stream restoration activities. The state provides several grant programs to fund watershed restoration and flood mitigation projects including the Colorado Healthy Rivers Fund, the Colorado Watershed Restoration Program, and the Fish and Wildlife Resources Fund. Water Supply Reserve Account (WSRA) Grants, administered through the IBCC/BRTs, also can provide restoration-related funding, typically through inclusion in a more multi-purpose project. A full description of each funding program can be found under Loans and Grants on the CWCB homepage. Mr. Sturm explained that in reviewing restoration project grant applications, WPR staff first verifies that the applicant clearly understands fluvial geomorphology, including how water, sediment, slope, discharge, and grain size effect channel geometry to form a dynamic equilibrium that allows the stream to persist within a range of conditions through self-correcting mechanisms. Grant applicants must also ensure that all stakeholders including farmers, ranchers, federal and state government, consultants, contractors, community groups, counties and cities, and funders have all been effectively brought into the planning process.
Sometimes grant money is even available to facilitate collaborative approaches. The more attention spent in developing truly multi-purpose projects that meet a wide variety of stakeholder needs, the better chances of obtaining needed funding from CWCB programs. A multi-purpose focus will also assist proponents to find and leverage funds from a variety of other federal, state, and local funding sources. Therefore, including ISF appropriations and acquisitions as part of a restoration or water supply project can increase its overall value, reduce conflict, and improve its likelihood of obtaining needed funding and support. A representative of the Division of Parks and Wildlife, who must review water supply projects in determining mitigation requirements, expressed a desire to see more consumptive water supply projects include ISF rights and fully explore non-consumptive needs upfront. If a watershed’s consumptive and non-consumptive needs can be effectively correlated in truly multi-purpose project design, the approval process can be shortened and the community may be more supportive of the overall long term results. This may foster the good will necessary to establish a collaborative approach that will allow each new project to meet with less resistance and benefit from more creative energy for development. One of the examples of a successful, multi-purpose restoration project Mr. Sturm presented was the Hartland Diversion Dam Reconstruction, which replaced a 120 yard wide, six-foot high low head dam to include native fish passage and safer boat and raft passage, while enhancing delivery of a 43 cfs water right to irrigators.
SWSI 2010 Nonconsumptive Needs Assessment
Jacob Bornstein, CWCB Water Supply Planning Program Manager, closed the workshop with a discussion of the completed Nonconsumptive Needs Assessment (NCNA) that BRTs had been elaborating for several years. NCNA Phase I maps environmental and recreational focus areas of nonconsumptive water needs throughout Colorado. NCNA Phase I maps were released as part of the Statewide Water Supply Initiative (SWSI) 2010 update, which also proposed projects and methods to meet nonconsumptive needs as part of NCNA Phase II. The focus now shifts to encouraging each BRT to use this information to focus on 3 to 5 projects to begin implementing with WSRA funds. In addition to just delineating focus areas, focus areas with no known or planned projects have been designated in red to encourage BRT members to consider them in particular when developing project options. An example NCNA project that was already implemented was land protection along the Rio Grande that helped meet state compact requirements and enhance agriculture, while creating wetlands and conservation easements. In another example, a South Platte River project created duck habitat, while putting 8 high-capacity irrigation wells back into production. Multi-purpose projects that can improve the environment, recreation, agriculture, compact security, and/or meet municipal and industrial water supply needs are especially encouraged to apply for WSRA funding.
ISF Tools and Resources
Several organizations present at the workshop mentioned additional tools that can be used for ISF appropriation and restoration planning. The US Forest Service has developed a nationwide Watershed Condition Framework and interactive map to proactively implement integrated watershed restoration on priority national forests and grasslands, which other planners will also find helpful. The non-profit Colorado Water Trust has been protecting and restoring streams through restoration projects that include cutting-edge ISF appropriations and acquisitions methods for over 10 years and expressed interest in helping BRTs and their member organizations through the entire process. The Nature Conservancy helped developed a CWCB flow chart for planning nonconsumptive projects and methods, as well as, the NCNA Phase I map, and will also be available to help BRTs move forward. Trout Unlimited, representing 10,000 members statewide, will continue to collaborate on retrofit projects like the Hartland Diversion Dam Reconstruction that helps private landowners while improving stream habitat. The Colorado River Water Conservation District has partnered with the USGS for over 15 years to monitor 10 restoration projects over time to evaluate long term success. The Colorado Watershed Assembly, with over 77 watershed member organizations statewide, works closely with CWCB and other state agencies to manage the Healthy River Funds application process and a new Measurable Results Program, which will also evaluate long term success of statewide watershed restoration projects.
Finally, Eric Hecox, CWCB Water Supply Planning Section Chief, expressed his anticipation that now that the huge amount of work required to gather all the needed information needed for NCNA and 2050 Municipal and Industrial Gap Analysis is now complete, multi-purpose project implementation can move forward boldly, but it will take the support of the nonconsumptive community in collaboration with consumptive use interests to make a huge leap forward to think together towards long term goals we can all share.