Excellent water quality starts with water in the stream

Sarah Klahn is a member of the Water Trust Board of Directors and a shareholder at Somach Simmons & Dunn. Sarah represents farmers and ranchers, as well as institutional clients, on water rights matters in four western states. 

It is a bitterly cold December morning and I am tooling up Boulder Canyon to do some backcountry skiing above Nederland. As I slow down for a hairpin turn, the sun makes its way over the edge of the canyon and I notice some movement in the creek. It’s a little bird known as a Dipper, bobbing up and down on a rock in the creek—and now diving into a pool below a fallen tree. These incredible birds live year-round near flowing streams in the Rocky Mountains and elsewhere in the west. They dive underwater for their food—aquatic insects—and actually have an extra eyelid so they can see while they’re underwater! Dipper populations on a stream mean it has excellent water quality and low silt load—both characteristics of Boulder Creek in Boulder Canyon above the City of Boulder.

Excellent water quality for Dippers and other species that live in or around aquatic ecosystem starts—of course—with water in the stream. In Colorado, water use is controlled under the state’s “prior appropriation system”, which forms the legal framework for water distribution in the state. You may have heard the phrase “first in time is first in right” which simply means the more “senior” rights to use a quantity of water are associated with the earliest uses. In many parts of the state (for example the Cache La Poudre River near Fort Collins or the Rio Grande and its tributaries near Alamosa), many irrigation water rights pre-date statehood. And, while the act of putting water to use forms the basis of a water right, that right is only enforceable if confirmed by a district court or, since 1969, Colorado’s water courts.

In many, if not most streams in the state, the amount of water decreed far exceeds available water supplies. Such streams are “over-appropriated”, meaning that only in a very wet year will many of the more recent (“junior”) water rights get to divert water.  In fact, Boulder Creek is over-appropriated at locations downstream of the City of Boulder. The Dippers are still safe in the canyon, where there are few actual diversions of water for consumptive use.

“Over-appropriated” as a concept gets a bad rap. At the time of European settlement, those turning the prairie and mountain valleys into farms and cities were focused on building new homes in an unfamiliar place. Whether we agree with these decisions today, at the time, claiming every drop of available water was an obvious start to settling in a place as arid as Colorado. But Colorado’s prior appropriation system also has flexibility that allows volumes of water to be assigned to “instream flow” uses—providing a means to leave water in the stream to benefit aquatic ecosystems, including our friend the Dipper.

The Colorado Water Trust is on the forefront of creative and thoughtful efforts to use flexibility in state water law to put water back into streams. The Trust works to identify both streams in need of additional flows and water rights owners who want to re-imagine the use of their consumptive water rights to improve stream health in their own neighborhood. Broadly, these tools fall into two categories: leases or loans, which are used by the Trust and water right owners who want to maintain ownership of their water rights; and purchase of water rights from owners who are interested in selling to the Colorado Water Trust.

On the Crystal River, a tributary of the Colorado River, the Water Trust and Cold Mountain Ranch, a water user diverting from a critical reach of the Crystal River, entered into an agreement that compensates the Ranch for coordinating diversions in a manner that enhances stream flows. The result is two-fold: the Ranch coordinates its diversions during certain types of water years to benefit the stream flow, but maintains ownership of its valuable, senior irrigation rights for use when water is more plentiful; and the stream benefits in years in which the river reach would otherwise be dry.

The Trust has also, from time to time, purchased portions of water rights, including an interest in the McKinley Ditch which diverts from the Little Cimarron River near Gunnison. Historically, three miles of the Little Cimarron River near Gunnison ran dry during late summer, due to upstream water diversions. Working with the Trust’s frequent partner, the Colorado Water Conservation Board, the Trust obtained a change decree from the Division 4 Water Court. The change decree authorizes the Trust’s water, which would otherwise be limited to irrigation uses, to be left in the stream for the benefit of the aquatic ecosystem.

The Dippers in Boulder Canyon are in good shape, given the water quality and flow regime in Boulder Creek below Barker Dam; any resident Dippers in the Cimarron or Crystal watersheds in the vicinity of the Water Trust’s projects are in better shape than they were before the Trust’s projects were initiated. And for other streams in Colorado that may experience extreme low flows (or dry up completely) during certain types of water years, the Water Trust is actively looking for opportunities to partner with senior water right owners and use available tools provided by the prior appropriation system to enhance stream flows and enhance and protect aquatic ecosystems.

Sarah Klahn
Board Member, Colorado Water Trust
Shareholder, Somach Simmons & Dunn