NEGOTIATING TO PUT WATER BACK INTO STREAMS
Negotiations are Key
Headlines like these have become familiar to those who follow western water issues: “Megadrought Stresses Stream Systems and Water Users” “Blue Ribbon Trout Fishery in Danger From Lack of Water”. In the face of a continuing megadrought—we are told the banner snowpack of 2022-2023 is likely just a blip—how to preserve and improve streamflows to promote healthy ecosystems? The staff at the Colorado Water Trust (CWT) (www.coloradowatertrust.org) goes to work every day to try to answer these questions. They’ve been remarkably successful, megadrought and all: since 2001, CWT has put over 74,000 acre-feet of water back into Colorado’s streams.
The Colorado Water Trust was founded about 20 years ago by a bunch of so-called “water buffaloes”—water attorneys and engineers who spent their workdays developing water rights to be diverted by thirsty cities and industrial users, and who thought it was time to find a way to put water back into streams. From the beginning, the concept was to find willing water rights owners and then use legal tools available under the prior appropriation doctrine to put water back into streams, while still preserving the underlying water rights. Many CWT water rights transactions involve a sharing arrangement or temporary lease, not a permanent transfer, and often involve the Colorado Water Conservation Board (CWCB), the state agency authorized to hold and protect instream flow water rights.
When a suitable water right is identified, CWT evaluates the most effective legal means to return the water to the stream while maintaining the owner’s property interest. Negotiations are key in this effort: both negotiations with the water rights owner to arrive at a workable sharing or lease agreement, negotiations with CWCB to establish an instream flow use of the water right, subject to the terms negotiated with the water right owner, and negotiations with neighboring water users who may be impacted.
One prominent project involves a “5 in 10” year lease, authorizing the release of water from Stagecoach Reservoir to benefit the Yampa River through Steamboat Springs, Colorado in “five years out of ten”. Conceived of during the extremely dry summer of 2012, the project has put over 17,000 acre-feet of water into the Yampa River and allowed the City of Steamboat Springs to maintain its recreational water uses during exceptionally dry summers, helped the city meet water quality standards at its wastewater discharge outfall, and has generally benefitted aquatic life in the Yampa River.