Hiking up to the next plot…
Further recognizing the need to correlate the activities of mankind with some reasonable preservation of the natural environment.. .theColorado water conservation board is hereby vested with the authority.. .toappropriate, or acquire, such waters of natural stream and lakes.. .topreserve the natural environment to a reasonable degree. .."It may not be as elegant and sweeping as . ..untrammneled by man.. .retainingits primeval character. ..,"' or as protective of our "rich natural heritage.. .ofesthetic, ecological, educational, recreational, and scientific value to our nation and its people. ..,"' yet it is still poetic.Like the Wilderness Act of 1964 and the Endangered Species Act of 1973, Colorado's Instream Flow ("ISF") Act of 1973 expresses an ideal and tasks a public agency to bring about that ideal.Here, the ideal includes a balancing act for the Colorado Water Conservation Board ("CWCB") to appropriate and acquire, on behalf of the people of the state of Colorado, water in natural streams and lakes to preserve the natural environment in sufficient quantity, in order to balance against the many diversions and uses of water for all other purposes, such as municipal, domestic, agricultural, recreational, commercial, industrial, and power generation, whether by direct flow use or after storage in small and large reservoirs.This is certainly an ambitious directive, and not without challenges.Part of the challenge is that the state's ISF statute was enacted in 1973, more than 100 years after diversion rights had already begun lining up within Colorado's prior appropriation system (with earliest priorities in the 1860's), where "first-in-time" is "first-in-right."Because the ISF rights were 100 years late in coming to the table, not only were these water rights assigned a very junior priority, but also, on many streams, the ISF water rights could only preserve an already diminished stream flow.Recognizing the issue, and in consideration of these limitations, the Colorado General Assembly also authorized the CWCB to acquire senior water rights for ISFs within the original 1973 ISF Act.In 2002, the General Assembly provided that those senior rights could be used not only to preserve, but also to improve the natural environment.No funding was provided for such acquisitions for the first several decades, so CWCB had to rely on donations.Because of this lack of funding and other factors, the acquisition component of the ISF Program progressed more slowly than the appropriation component.In 2008, the General Assembly authorized 2. SB 73-97: Providing for the Appropriation of Water by the State of Colorado to Protect the Natural Environment, ch.442, § 148-21-2, 148-21-3, 142-21-18, Colo.Session Laws 1521-22 (codified at § 37-92-102(3).3. Wilderness Act of 1964, Public Law 988-577 (16 USC 1131-1136).4. Endangered Species Act of 1973, Public Law 93-205 (16 USC ch.35 1531, et seq.). 5.This article often refers to "ISFs," but also includes the protection of natural lake levels.Fior efficiency, natural lake levels may also be implicated in discussions only referencing "ISFs."Issue 2 391 4 WA7ERIAWREVIEW an annual appropriation of $1 million from the Construction Fund for the ISF acquisition program to help the program progress.Even so, partly because of the complexity of transactions that can include expensive and time-consuming water court litigation to change the acquired water rights' type of use, the ISF acquisition program still lags significantly behind the robust junior instream flow appropriation component of the ISF Program.The CWCB is not without tools both to exercise its delegated authority and address challenges.Challenges and successes require creativity and energy at every turn, and since its inception, the CWCB ISF Program has not experienced a dull moment.Before jumping into the evolution of the law, we provide a brief summary of the Program as it stands today.Guided by a Board of Directors, who, by design, represent a cross-section of the geographic and political divides, the CWCB's four ISF program areas include: (1) new appropriations (requiring detailed analyses of recommendations, processing, and adjudications of new ISFs); (2) acquisitions (analyses, processing, and approvals of short-term, long-term, and permanent acquisitions of water rights and interests in water); (3) physical protection (stream gaging and requesting administration); and (4) legal protection (water court resume review, opposition, negotiation of decree terms, and litigation when needed).From the first appropriations and acquisitions in the early 1970s to the present, the CWCB has appropriated and adjudicated 1,669 ISF water rights to preserve 9,599 miles of streams and 482 natural lake levels.The CWCB has acquired approximately 163 water rights within approximately 50 projects to preserve and improve over 756 miles of streams.' CWCB works closely with the Division of Water Resources on administration of its water rights within the priority system, using a real-time alert system tied to strean gages across the state.Currently, 242 alert stations monitoring stream flows at telemetered gages provide email alerts to staff.7 Additional stream gaging needs are reviewed on an ongoing basis.Over the years, as issues arose in the water rights community, various legal challenges rose to the Colorado Supreme Court level, and issues were brought to the legislature.As a result, the Colorado Supreme Court has decided cases that clarified the CWCB's authority on numerous occasions (at least once or twice a decade)', and the General Assembly has clarified, modified, and at times expanded, the CWCB's authority (from once to several times a decade)' Under 6. SceCWCB database web site at https://data.colorado.gov/Water/CWCB-Instrean-low-and-Natural-Lake-Level-Data/ksx-aqy6. 7.Information obtained from author's contact with CWCB staff, Robert Vichl, on March 26, 2019.8. Supreme Court cases involving ISFs include: Colo.River Water Conservation Dist.v. Colo.Water Conservation Bd., 594 P.2d 570 (Colo.1979); Bd. of County Commissioncrs for the County of Arapahoc v. E.C Collard, 827 P.2d 546 (Colo.1992); In the Matter of Upper Gunnison River Water Conservancy )istrict, 838 P.2d 840 (Colo.1992); Aspen Wilderness Workshop, Inc. v. Colo.Water Conservation Bd., 901 P.2d 1251 (Colo.1995); Colo.Water Conservation Bd v. City of Central, 125 P.3d 424 (Colo.2005); Colo.Water Conservation Bd.V Farmers Water Development Co., 346 P.3d 52 (Colo.2015); St. Jude ' Co. v. Roaing Fork Club, LLC, 351 P.3d 442 (Colo.2015).9.The main legislative changes and clarifications to the ISF program include: Senate Bill 73-97 Original ISF Act; Senate Bill 81-414, which added protection for existing uses to section 37-92-102(3)(b) and the three determinations for ISF appropriations; Senate Bill 86-91 added Volume 22
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