Don't Use It? Don't Lose It!
NEW WATER LEASING OPTIONS BENEFIT RANCHES, FARMS AND WILDLIFE, TOO
By Drew Peternell
Trout Unlimited
Colorado farmers, ranchers and homeowners should be aware of several recent legislative developments that will help to protect Colorado's environment while promoting flexibility in the use of private property rights. In the 2008 session, the General Assembly passed, and Gov. Bill Ritter signed, three bills that strengthen the state's instream flow program and create new options for water rights owners.
In 1973, recognizing that adequately flowing streams are critical to wildlife and a healthy environment, the General Assembly granted the Colorado Water Conservation Board - a state agency within the Department of Natural Resources - the exclusive authority to acquire water to bolster instream flow. Under this authority, the CWCB can lease, buy or accept a donation of water rights historically used for out-of-river, consumptive purposes—like irrigation—and return the water to the stream for the benefit of the environment.
In the thirty-five years since 1973, however, the CWCB has acquired only a handful of water rights for instream flow. Why? Two main reasons: First, while the CWCB has had the authority to lease or buy water rights, it never has had financial resources set aside for this purpose. In effect, the board's authority to lease or buy water has been a hollow one. Second, the longstanding “use it or lose it” principle of Colorado water law meant that individuals who leased water to the CWCB for instream flow could lose the underlying water right. Faced with this risk, it's understandable that Colorado water rights owners have been reticent to allow the CWCB to use their water rights to enhance instream flow.
But state legislation passed this year addresses these two problems and gives water rights holders new incentives to make their water available for wildlife conservation purposes. House Bill 1346 appropriates $1 million annually to the CWCB to lease or buy water rights for use as instream flow, and Senate Bill 168 authorizes an additional appropriation of as much as $500,000 annually for the CWCB to acquire water rights for instream flow to benefit native species such as the Colorado River cutthroat. These funds are available to compensate water rights holders for leaving water instream.
Moreover, House Bill 1280 guarantees that farmers, ranchers and homeowners who want to lease water to the CWCB for instream flow use won't lose their leased water right.
This package of legislation is a big step forward for the CWCB's instream flow program and will help protect and restore flows in Colorado's waterways, thereby creating a healthier environment and better habitat for fish and wildlife. Such stream flow protection tools will be even more valuable should Colorado's climate become warmer and drier in the future, as many scientists predict.
The legislation helps more than just fish and wildlife, though-it also benefits water owners by giving them greater flexibility in the use of their water rights, which are private property interests under Colorado law.
The CWCB in-stream program isn't for everyone. But for some Colorado water rights owners, partnering with the conservation board will make sense. For example, an irrigator could choose to rotationally fallow a portion of her land, committing the unneeded water to instream flow. The irrigator would receive market-based payment for the use of her water, while the stream would receive additional habitat-enhancing water flow.
At a time when cities are buying up farms and ranches for the sole purpose of converting the water rights to municipal use and sucking the land dry, Coloradans should welcome these new instream flow tools, which encourage farmers to continue irrigating and growing on their land while being good stewards of our natural resources.
In an arid state with skyrocketing demand for water to fuel population growth and energy development, it's important to find innovative ways to protect some of Colorado's greatest assets—its streams and rivers, fish and wildlife.
Now, with CWCB instream flow acquistions, it's easier for Colorado farmers, ranchers and homeowners to be part of the solution.
To learn more about the instream flow program and how to craft an instream flow deal with the CWCB, contact Drew Peternell at Trout Unlimited's Colorado Water Project, (303) (303) 440-2937 x102, or DPeternell@tu.org. 
Drew Peternell is the director of Trout Unlimited's Colorado Water Project, which is dedicated to the protection of the state's coldwater rivers and streams.
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