Abstract

Over the past 200 years, the large majority of Colorado’s rivers have been altered to make way for development, agriculture, or transportation, or to deliver water to users more efficiently. Rivers have been buried by mining debris or concrete, channelized, levied, wholly diverted, riparian vegetation lost by grazing or land use practices, and thousands of miles of streams have become incised, disconnected from their floodplains. Numerous scientific studies over the past twenty years have documented why degraded rivers are problematic and why healthy functioning river systems connected to their floodplains provide numerous critical services beyond water delivery, including increased protection for Colorado communities through reduced risk of impacts from drought, wildfires and floods, improved water quality by filtering sediments and other pollutants, increased habitat in streams and riparian areas, and increased resiliency for the State’s water resources. Fortunately, many case studies are also showing how we can restore our degraded streams to regain these incredible benefits.

 

But there are barriers to restoration, one of which we review in this Article and make recommendations to address. Colorado’s water rights system, although founded upon protecting the “beneficial use” of the State’s waters, fails to adequately recognize or protect the many benefits Colorado’s healthy stream systems provide to the State’s water resources, which in addition to the ecosystem services listed above, include a multibillion-dollar recreation economy. A strength of Colorado’s water rights system has been its ability to adapt over time based upon science and water resources values important to Coloradans. We suggest in this Article that it is time once again for Colorado’s water rights system to recognize what the science is telling us about the benefits of healthy rivers by returning to prior administrative practices that do not discourage river restoration. Additionally, we suggest the development and adoption of administrative practices that actively assist in keeping Colorado’s natural river infrastructure healthy by protecting the many tangible and intangible benefits that healthy rivers provide all Coloradans.

Introduction

I have had the privilege in my life of learning how to run rivers. I’ve connected with rivers from my early days. My dad, a whitewater canoeist, brought me along for a few trips when I was young, and many family trips involved splashing in cold mountain streams. It was an easy choice to train to become a river guide after my first year in college. I quickly got the itch to go West where snowmelt-fed rivers, ever-changing flows, and water scarcity worked their way into my consciousness. I love the awe wild rivers provide and the joy of experiencing the life these rivers support. Fast forward just a few years and now the rivers support my livelihood. My husband and his brother opened a humble rafting outfitter on Clear Creek based in Dumont, CO. My prior fascination with the unpredictable nature of rivers has now become a focus on river protection—not solely because of the many environmental and intangible benefits rivers provide but also because of the real financial impact of healthy streams and rivers on the vitality of my family. People don’t get into river outfitting to get rich. It comes from somewhere deeper, a desire to share with others a deep love of rivers and all they provide.

–Hattie Johnson

*****

My life changed upon visiting a process-based stream restoration project in South Park, Colorado in 2018. I was researching this fairly new approach to restoring degraded incised streams called low-tech process-based restoration and actually seeing and hearing about how the restoration worked and the difference it was making to restoring the riverscape really blew me away. I was used to seeing large excavators in the stream and large budgets of over $1 million per mile (which meant fairly few projects could be accomplished each year). Here was a new approach that was light on the land, used natural materials placed by hand or minimal equipment, and worked so well for often less than $100,000 per mile. From that day forward I could not view any river wherever I was traveling for work around the state or for a camping/backpacking trip without thinking about what the river probably looked like before the degradation occurred and how beautiful and ecologically beneficial it could be once again if restored back to health.

–Jacquelyn Corday

*****

Growing up as a young boy, my father was insistent on me being involved in the Boy Scouts and sitting out amongst the stars in a remote setting was a typical weekend for myself and my fellow peers. As part of our program, my troop would go on yearly rafting trips and our use of the river, in its natural state, provided an escape for all of us to realize the importance of how we interact with nature. The scouting program was more than a great way to learn outdoor skills though, it taught me the importance of protecting the resources, habitats, and values that make the outdoors so unique and special. I feel fortunate to have a meaningful connection with water, especially as someone growing up in Kansas City, Missouri, where water scarcity was not an issue. Now, I find myself in Colorado where water availability is a pressing and real issue for many. My hope is to use my learned experience as a resource to advocate for greater water security and equity for all because we all rely on water for life. Water is more than a resource; it is a building block that provides unspoken values. If we allow those unspoken values to thrive, we will see a return to healthy natural rivers.

–Andrew Teegarden

*****

I’ve been a water attorney for more than half my life. Still, my relationship with rivers changed when my partner and I scraped together our savings for a little place of our own up in Grand County, Colorado, near Hot Sulphur Springs, on Kinney Creek, a small tributary of the Colorado River. Our cabin is where we unwind, escape, and connect, and where our son has had the chance to bang on sticks, run through the woods, chase our enormous sheepdog, and stand in the stream looking for beavers. It’s a special spot, so much so that every year during the Perseid meteor shower it plays host to a long weekend celebration with family, friends, and friends of friends in hopes other folks will appreciate a bit of the magic of Colorado.

About those beavers. It took us a while to understand one another. After trying to chase them away for flooding the driveway, I learned you don’t outwork a beaver. So we learned to accommodate one another, placing beaver deceivers (a coexistence method) in the stream and allowing the beavers to do their thing in peace; something for which I was made profoundly grateful, when on October 14, 2020, the East Troublesome Fire ignited in the Rocky Mountains east of Troublesome Creek. High winds whipped the fire into a 100,000-acre inferno destroying homes and forests across Grand County until snow and colder temperatures finally allowed the fire to be contained. The East Troublesome Fire killed two people, destroyed more than 400 houses and structures, and burned over 190,000 acres, making it the second-largest fire in state history. Unlike so many of our neighbors, our spot in the mountains survived. The healthy riparian bottomlands of Kinney Creek, maintained through years of indefatigable beaver effort connecting stream and floodplain, saved us. Now, I’m a friend to the beavers. And rivers to me are sacred.

–John Cyran

*****

The foregoing recounting of the authors’ personal experiences with rivers is perhaps an atypical introduction for a scholarly discussion of Colorado’s water rights law and administrative practices.^[5] However, the experiences are included here to make a point. There are numerous “beneficial uses” of water, yet many are given no or limited recognition or protection under Colorado’s water rights system. Colorado’s prior appropriation system dates from the mid-1800s, founded on a recognition of Colorado’s water resources as a limited public resource that Colorado citizens have the right to “appropriate” by placing it to a beneficial use.^[6] Such appropriation may be legally recognized via water court decree to provide protection of such use against later appropriators based on a priority date awarded within the prior appropriation system.^[7] Colorado’s water rights system is intended to be agnostic insofar as preferring any type of “use” of the State’s limited water resources over any other; rather, when there is not enough water (as is often the case in many parts of the state) to meet all demands,^[8] water is distributed among water users based on the foundational concept of “first in time, first in right,” rather than through imposition of value judgments upon the many different ways Coloradans benefit from use of the waters of our State.^[9]

That, at least, is the theory. The practice is different. The personal stories describe how, notwithstanding progress in some areas, many of the ways in which our streams and rivers have long benefitted us individually as Coloradans and collectively as a State remain unrecognized and beyond the protections provided by Colorado’s water rights system. What ties these benefits together is the same thing that makes them difficult to protect: Colorado’s prior appropriation system provides little recognition of the important benefits bestowed on Colorado and Coloradans, not from diverting and consuming water out of our streams, but by keeping water within our streams. These benefits are realized by allowing our rivers to function as rivers: not as mere ditches, but natural systems encompassing the entire “riverscape”^[10] and the many natural processes therein vital not only to river health, wildlife, and water security, but to the health of Colorado’s communities.

The latest science is uniformly and unambiguously telling us that healthy natural stream systems^[11] provide many irreplaceable benefits to Colorado and Coloradans, including, inter alia, increased protection for Colorado communities through reduced risk of impacts from drought, wildfires and floods; improved water quality; increased environmental health in streams and riparian areas; and increased resiliency in the State’s water security.^[12] These ecosystem services provided by functioning floodplains, which in many locations include beaver complexes, have tremendous economic value.^[13] Further, economic analyses demonstrate the importance of healthy natural stream systems to vibrant and healthy communities through Colorado’s $19 billion recreational economy.^[14] Indeed, as more studies demonstrate the benefits of healthy natural stream systems, it is becoming clearer that in the face of climate change impacts, healthy rivers with connected functioning floodplains are essential natural infrastructure, not only for Colorado’s environment and wildlife, but for the resilience of Colorado’s water resources for people and nature.

Yet, despite this increased recognition of the many benefits of healthy streams and rivers to Colorado’s water resources and water security,^[15] Colorado’s water rights system falls short in protecting the many benefits that arise from healthy stream systems and has instead favored treating rivers similar to ditches for the efficient delivery of water to downstream users. This Article points to several instances where Colorado’s water rights system fails to recognize or protect the many benefits healthy, unaltered rivers provide Colorado, Colorado’s water rights system, and Colorado’s recreational economy.

Section I of the Article discusses how scientific studies, particularly over the past decade, are documenting the importance of healthy stream systems in providing Coloradans with important ecosystem services, including benefits to Colorado’s water security. The Article argues that, notwithstanding the steps that have been taken to protect our rivers, Colorado’s water rights system does not recognize the critical importance of restoring healthy natural stream systems in the face of climate change impacts—drought, wildfire, and decreased snowpack—already impacting Colorado.

Section II of the Article discusses the measurable and immeasurable benefits to Colorado’s economy and quality of life provided by recreation on Colorado’s natural streams and rivers. The Article discusses how Colorado’s water rights system fails to recognize, or protect, these benefits, limiting protection to recreation in reservoirs and manufactured whitewater parks.

Section III looks to address the shortcomings in Colorado’s water rights system raised in Sections II and III, by reviewing the positive impacts of the Arkansas Voluntary Flow Program and the General Assembly’s recent adoption of Senate Bill 23-270,^[16] and proposes an adjustment to the State’s current practice that, without altering the principles of Colorado’s prior appropriation system, would result in better protection of the many benefits provided by natural healthy rivers.

I. Healthy Rivers are Essential to Healthy Water Resources

A. Colorado’s Prior Appropriation System: Evolves Based Upon Science . . . Sometimes

As discussed above, Colorado’s water rights are distributed among water uses based on the concept of “prior appropriation,” which includes the simple principles of “beneficial use” and “first in time, first in right.”^[17] Colorado’s prior appropriation water rights system has been successful, with variations of it having been adopted across the Southwest.^[18] Part of that success is perhaps due to the system’s malleability in incorporating our ever-increasing knowledge of the scientific processes underlying water systems.

This malleability is demonstrated by the evolution of Colorado’s water rights system addressing the interactions between groundwater and surface water rights. Prior to the 1960s, Colorado water law rarely addressed the impact of groundwater well pumping on surface rights.^[19] However, in a series of statutory enactments, beginning with the General Assembly’s adoption in 1965 of the Colorado Groundwater Management Act^[20] and the Water Right Determination and Administration Act in 1969,^[21] the General Assembly began to recognize the importance of reconciling the impact of groundwater pumping on Colorado’s water resources.^[22] Concern about this impact intensified when Colorado experienced significant drought in the early 2000s, leading to the Colorado Supreme Court in Simpson v. Bijou requiring the State engineer to curtail the operation of hundreds of wells in the South Platte River basin based on a presumption that these wells would cause injury to senior surface water users.^[23]

The drought of the early 2000s not only impacted water users on the South Platte River, but also water users in the San Luis Valley, where a significant reduction in aquifer levels in the San Luis Valley became a serious issue, heightening recognition of the impacts of groundwater depletion on surface water users.^[24] However, rather than presuming all such pumping as injurious to water users and ordering curtailment of all wells in the San Luis Valley in a manner similar to the Simpson v. Bijou decision, the General Assembly instead enacted legislation directing the State Engineer to study the San Luis Valley’s unique water systems and adopt Rules for the administration of ground and surface water rights in a manner recognizing “the unique geologic and hydrologic conditions and the conjunctive use practices prevailing in Division 3” while “permit[ting] the continued use of underground water consistent with preventing material injury to senior surface water rights” and regulating “the confined and unconfined aquifers . . . so as to maintain a sustainable water supply in each aquifer system.”^[25]

In short, the General Assembly directed the State Engineer not to presume injury, but to follow the science. In practice, this legislation resulted in the State Engineer allowing groundwater wells in the San Luis Valley to continue to operate without curtailment, while simultaneously initiating hydrogeological studies of the San Luis Valley’s water systems.^[26] These studies culminated in the development of the State Engineer’s mathematical three-dimensional groundwater model of the San Luis Valley, known as the Rio Grande Decision Support System or “RGDSS Model,” and subsequent adoption of the Confined Aquifer Rules implementing the results of the Model to provide guidance in evaluating interactions between groundwater pumping and the San Luis Valley’s water resources—an important step forward in the long process towards more intelligent and more sustainable management of the San Luis Valley’s water systems.^[27]

B. The Science on River Restoration: Colorado’s Water Rights System Should Recognize the Many Benefits of Healthy Riverscapes

Much like our understanding of the science of groundwater/surface water interactions, our understanding of the beneficial impact of healthy stream systems on Colorado’s water resources and water rights system has advanced greatly over the past forty years, and in particular the past ten years. The science of “river restoration” is attributed to a “growing recognition [in the 1980s] of how severely and extensively past river engineering has altered rivers.”^[28] Early restoration methods involved the use of heavy equipment to reconfigure the stream channel to a predetermined channel type and stabilize the banks. This approach often unnaturally kept the river confined to a single channel and with only periodic connection to its floodplain.^[29]

In the 2000s, research indicated that most of these “hardscape” restoration projects prioritizing “form over function” were unsuccessful in improving actual stream “health” in terms of restoring the many natural processes, functions, and benefits provided by rivers that are fully connected to their floodplains.^[30] This research coincided with a shift in focus in restoration efforts from the shape of a river channel to more holistically considering the entire “riverscape” and the many natural processes vital to river health taking place within the riverscape.^[31] This approach has become known as process-based restoration (“PBR”), which recognizes “that streams are not simply a channel but a complex dynamic and evolving system that includes all of the area on and near a valley floor that has been affected by or directly affects fluvial processes.”^[32] PBR methods attempt to better understand the many processes and functions (e.g., natural stream hydrology, sediment routing, and nutrient cycling) connecting a stream and its surrounding floodplain. PBR methods attempt to restore these processes by determining what “stressors” have caused a stream to become degraded, incised, and disconnected from its floodplain, and then taking steps to address such stressors to restore the “health” of a stream by reconnecting a stream to its floodplain and thus restoring natural stream processes.^[33]

Many people may not realize that approximately sixty-one percent of Colorado’s smaller streams and about ninety-seven percent of our major rivers have experienced floodplain alteration, rendering them partially or wholly nonfunctional.^[34] In upper rural watersheds, the main causes of altered floodplains were reported to be historical mining and timber harvesting practices, historical and present-day agricultural practices such as channelizing streams to increase area for hay production, alteration of flows by dams and diversions, roads and other infrastructure development, and removal of beaver.^[35] Common physical effects of disconnected floodplains include “lowered groundwater tables, the loss of wetlands, lower summer base flows, warmer water temperatures, and the loss of habitat diversity. Biological effects include a substantial loss of riparian plant biomass and diversity, and population declines in fish and other aquatic organisms.”^[36]

Because the scale of the problem is immense, an increasingly popular approach for restoration is a subset of PBR that is referred to as “Low-Tech Process Based Restoration” (“LTPBR”), which typically costs about ten percent of the cost of traditional form-based heavy equipment projects.^[37] LTPBR methods focus on utilizing simple, inexpensive, mostly hand-built porous structures made of wood, cobble, and native sod that are designed to be temporary and mimic wood accumulation or beaver dams within streams.^[38] These structures are designed to act as speed bumps to slow the spring snow runoff and summer monsoonal events that otherwise flash through the system along with tons of sediment. Over time, the speed bumps will cause sediment to accumulate and slowly aggrade the incised stream to reconnect with its former floodplain.^[39]

Although the scale of Colorado’s degraded stream problem is immense, the benefits of restoring healthy stream systems would be as well. Research surrounding the effects of healthy connected floodplains continues to grow, with many more reports being published each year. The following benefits of healthy rivers have been widely documented:

1. Drought and flood resilience

Studies indicate that healthy natural stream systems and restored headwater floodplains and wetlands recharge local aquifers. Enhanced water storage capacity in floodplains allows for slow infiltration of runoff into soils and wetlands, providing natural storage during spring runoff that can be slowly released to streams during the summer months and during drought conditions.^[40] Healthy connected floodplains also help delay downstream flood peaks.^[41]

2. Wildfire resilience

Protected and restored headwater wetlands can provide important fire breaks from wildfires and refugia for wildlife and livestock during fires. A 2020 study of large western US wildfires found that riparian vegetation around beaver complexes had a three times greater rate of survival than around stream segments without beavers.^[42]

3. Increased water quality

Beaver dams have been shown to retain nutrients (such as an overabundance of nitrogen), as well as heavy metals, reducing downstream pollution levels.^[43] Additionally, studies have shown beaver complexes can provide cooler water refugia for aquatic species.^[44]

4. Reduced sedimentation

A study in England monitored a series of thirteen beaver ponds and determined that over the four years of monitoring, the ponds trapped on average 7.8 tons of sediment, totaling 101.5 tons.^[45] The authors concluded beaver ponds may help mitigate the downstream impacts of erosion and nonpoint source pollution.^[46]

5. Improved critical habitat

Riparian and wetland areas on floodplains represent only about two percent of Colorado’s landscape but are hotspots for biological diversity and provide both refuge and movement corridors for most wildlife species during all or part of their life cycles.^[47] LTPBR and beaver dams enhance this critical aquatic and terrestrial habitat and have also been shown to enhance fisheries.^[48]

6. Increased water availability and forage for livestock and wildlife

A 2018 study of LTPBR projects in Colorado, Oregon, and Nevada showed that the projects increased vegetation productivity and extended it longer into the year.^[49] A U.S. Department of Agriculture study of LTPBR projects in dryland areas of Oregon, Nevada, and Idaho involved extensive interviews of fifty-three ranchers, the large majority of whom expressed great enthusiasm for beavers returning to their ranches due to the increased availability of water and better forage for livestock that can translate into financial gains.^[50]

In summary, the accelerating impacts of climate change, combined with the strong evidence for enhanced ecosystem services from LTPBR projects, is leading scientists to conclude that it is important to boldly move forward with LTPBR projects while more research is being conducted.^[51] Land and water managers have the opportunity “to address the triple challenge of: (i) restoring ecosystem function and services, (ii) improving security to communities dependent on rivers for irrigation and clean drinking water, and (iii) adapting to climate change.”^[52]

C. Colorado’s Water Rights System: Consumption First, Healthy Rivers Not Adequately Recognized by Current Administrative Practices

Although the science on the benefits of healthy stream systems is becoming clearer, Colorado’s water rights system does not yet reflect this science. The legal protection provided streams under the prior appropriation system is very limited in that diversions must be for a beneficial use and the user must obtain a water right, but there is no prohibition on diverting 100 percent of a stream until it is completely dry. As discussed infra, the Instream Flow Program was enacted to protect minimum environmental flows, but because the program relies on junior water rights the program generally only protects existing stream conditions even if degraded and incised, rather than facilitating stream restoration. Further, the value of the program is limited by current state administrative practices which view restoration projects to reconnect incised streams with their floodplain as an injurious diversion of water “out of the stream.”^[53]

1. The Colorado Instream Flow Program: A good start, but more is needed

Although healthy rivers and streams have long benefited Colorado, the many positive benefits provided by healthy rivers and streams were not formally recognized under Colorado’s water rights system until the early 1970s with the adoption of the State’s Instream Flow Program.^[54] The concept of an Instream Flow Program in Colorado dates back to the 1950s, when, in the context of the proposed Fryingpan-Arkansas project, it became evident that future water projects could completely dewater the streams of the State.^[55] Efforts were made to address this issue by creating a mechanism to protect flows within streams. These efforts were complicated by interpretations of Colorado’s water rights system as protecting only the use of water after it has been diverted out of a stream, rather than the protecting the use of water that remains within a stream—a perceived limitation that, as discussed herein, has considerably limited the ability of Colorado’s water rights system to protect benefits provided by healthy stream flows within healthy rivers.^[56] Finally, in recognition of the “need to correlate the activities of mankind with some reasonable preservation of the natural environment[,]” the General Assembly in 1973, over considerable opposition,^[57] created Colorado’s Instream Flow Program.^[58]

The Colorado Instream Flow Program vested in the Colorado Water Conservation Board (“CWCB”) the exclusive authority to appropriate water between two points on a stream reach, without the need for an out-of-stream diversion, “such waters of natural streams and lakes as the board determines may be required for minimum stream flows or for natural surface water levels . . . to preserve the natural environment to a reasonable degree.”^[59] The Colorado Supreme Court has held that this exclusive authority creates in the CWCB a “unique statutory fiduciary duty” to the Colorado public.^[60] The CWCB must “only appropriate such waters as ‘may be required for minimum stream flows . . . to preserve the environment.’”^[61] Once the CWCB has determined this minimum amount of stream flow and made an appropriation, the CWCB must act to ensure the protection of that appropriation as against other water users.^[62]

Over time, Colorado’s Instream Flow Program has proven to be an effective tool for preserving Colorado’s natural environment “to a reasonable degree.”^[63] The CWCB currently holds decrees for almost 1,500 instream flow water rights, the largest number of water right decrees held by one entity in the State of Colorado.^[64] These water rights protect 8,500 miles of stream and 477 natural lakes in all seven water divisions.^[65]

However, the program has substantial limitations. First, in limiting the purpose of the program to appropriating “the minimum stream flows [necessary] . . . to preserve the natural environment to a reasonable degree,” the program is intended to protect only some of the many benefits bestowed by healthy stream systems.^[66] In appropriating water rights, the program does not consider the benefits of, inter alia, ecosystem services provided by functioning connected floodplains, such as improving drought, flood, and fire resilience, recreation, or water quality.

Second, in limiting the amount that may be appropriated to that amount necessary to preserve the condition of a stream, the water protected by an instream flow right is arguably limited to that amount necessary “to preserve” rather than “restore” the natural environment to a reasonable decree. ^[67] Thus, the main benefit of instream flow water rights is maintenance of current baseline stream conditions for already healthy streams, rather than restoration of the historic healthy condition prior to the degradation (e.g., incised, disconnected floodplains) occurring.

Third, because the CWCB program was not created until 1973, CWCB instream flow rights are very junior water rights.^[68] Thus, notwithstanding the fact that nature and Coloradans have been enjoying the many benefits provided by Colorado’s streams and rivers since long before the date of appropriations, the “water rights” that protect these streams are typically subordinate to other uses. Thus, while these rights provide some protection in changes in stream conditions sought by new water rights applications, the rights are too junior to guarantee any supply of water to our streams as against the great many senior water users. This “junior” status for instream flow rights is especially problematic, in view of the State’s current position, discussed infra, of presuming healthy stream systems are injurious to senior water users, and seemingly requiring streams to obtain “senior” water rights in order to be healthy.

2. Colorado administrative policy: do rivers need water rights to be healthy rivers?

Interest in watershed restoration is rapidly growing across Colorado and the West as we continue to experience the effects of a twenty-year-long drought that is likely a permanent change, the new normal: “less water availability and ever increasing megafires (fires that burn more than 100,000 acres).”^[69] The 2023 Colorado Water Plan recognizes how essential healthy watersheds are to Colorado: “Sustaining healthy watersheds, which include the forests, rivers, and habitat within them, is critical to Colorado’s tourism, our resilience, and our water supply.”^[70] Over the last decade, interest around utilizing process-based restoration (“PBR”) approaches to restoring degraded streams has significantly increased, particularly around the Western States. PBR-type restoration seeks to “re-establish natural stream processes (hydrology, sediment routing, nutrient cycling)” in many cases by utilizing methods aimed at reconnecting incised streams with their floodplains to restore a natural inundation frequency and duration.^[71] Much of the attention is focused on “low-tech process-based restoration” (“LTPBR”) which is a subset of PBR that relies on small, low-tech actions, such as strategically placing woody debris to reduce runoff velocities and supporting the return of beaver to their historic habitat where appropriate, which encourages streams to heal through natural processes.^[72]

Numerous watershed and water stakeholders are realizing that significant needs exist for low-cost, nature-based solutions to build resilience to climate change impacts by restoring the health of our forests and our natural water infrastructure.^[73] Public lands, including National Forests and lands managed by the Bureau of Land Management (“BLM”), are often the focal locations for such projects, but ranchers and other private landowners are also seeking out such nature-based solutions to improve forage and water reliability.^[74] Research indicates that LTPBR, when implemented in appropriate settings, can be one of the most effective methods to restore stream health and improve ecosystem services.^[75]

As the benefits of PBR projects became more widely recognized, the Colorado Division of Water Resources (“DWR”) began receiving requests in approximately 2017 from restoration project managers to review their proposed PBR-type restoration projects to determine if DWR had any water rights concerns with such projects.^[76] Previous to PBR methods being developed, the vast majority of stream restoration work in the 1980s through around 2010, utilized form-based restoration focused on creating stable, natural-looking engineered single channels with increased in-channel aquatic habitat often provided by placed boulders and large wood.^[77] The water continued to flow downstream pretty much exactly as it had before, which did not cause concerns with water rights.

Conversely, questions around water rights arose with how LTPBR projects looked different —they did not seek to keep the stream channelized if that was not what the stream historically looked like (i.e. was it braided, meandering, or anastomosing). PBR projects seek to restore the stream to how it functioned prior to the disturbance that caused the stream to incise and become disconnected from its floodplain.^[78] LTPBR methods typically involve the placement of structures in the channel, made of natural materials like wood, cobble, and native sod, that act as speed bumps to slow the flashy flows of snow runoff and monsoonal events to allow sediment accumulation to slowly aggrade the stream to reconnect with its floodplain.^[79]

Up until early 2019, DWR relied on what has been described as the “historical footprint test” (“HFT”) pursuant to which DWR considered restoration projects reconnecting a degraded stream to its floodplain within the stream’s “historical footprint” as non-injurious to water rights because no more water would be “used” by the restored conditions than what was used by the historic pre-disturbance conditions.^[80]

There are three main elements to the HFT:

1. The project will not result in expansion of the riparian/wetland/river historic footprint that existed prior to disturbance;
2. No water consumption beyond the historic conditions – This translates to there will not be any more evapotranspiration from the restored riparian/wetland species or the expanded water surface area than there was historically prior to the stream disturbance; and
3. No water diverted for irrigation of planted wetland or riparian plants unless in free river conditions or provided by an appropriate decreed source.^[81]

This was a logical test that restoration practitioners could follow as that was in fact typically the goal of the project: to restore the stream corridor to what it was like before the disturbance occurred (e.g. mining, logging, grazing, channelization, beaver removal, etc.). If a project aimed to create wetlands beyond a stream’s historical footprint where none previously existed, then there is no question that a water right must be obtained.

Notwithstanding its usefulness, DWR shifted away from the HFT to a new approach for administering restoration activities that essentially presumes that reconnecting streams to their floodplains will likely injure water users by resulting in an out of priority diversion or illegal storage.^[82] DWR’s new position was posted in the spring of 2022 on DWR’s webpage entitled “Pond Management and Restoration Projects” (hereinafter “DWR Guidance”).^[83] The webpage explains that “there is no statutory requirement for project proponents to obtain input from DWR prior to commencing such a project.”^[84] However, DWR warns it may nonetheless order curtailment of such projects as an “illegal” storage or “diversion” of water, or for creating “unnecessary” obstructions that “restrict or impede the flow of water” to the detriment of the State’s water users.^[85]

Given the increased pressures on DWR to administer an ever-tighter water supply, increased scrutiny of restoration was understandable.^[86] To those working to restore Colorado’s streams, presuming stream restoration injures water users was a dramatic change in position that seemed inconsistent with the science and, given the impact of the new policy on stream restoration efforts, felt unduly heavy-handed when best management practices guidance could have addressed such concerns.^[87]

In short, DWR’s Guidance led to great concern by numerous stakeholders involved in stream restoration across Colorado as the new policy indicated that any type of stream restoration activity could be viewed by DWR as a diversion, storage, or obstruction, and hence need an augmentation plan in order to proceed. This interpretation of water law, that a water right is needed to restore a stream, in part stems from viewing rivers as just the channel itself, serving mainly to deliver water to users, and does not include the floodplain.^[88] What is commonly referred to as the “active channel,” is just one component of a natural stream system. The other critical component is the floodplain, which must be healthy and functioning to provide ecological and ecosystem services and can vary greatly from fairly narrow in confined geology and/or steep locations, to hundreds of feet wide in unconfined low-gradient areas.^[89] The floodplain often includes riparian vegetation, riverine wetlands, and oxbows, which combined with the channel(s), has been referred to as the river-wetland corridor^[90] or riverscape.^[91]

As discussed supra, the majority of Colorado’s rivers have become incised over the past century due to many human causes, and thus often the current condition of a single incised channel is not natural, but a degraded state. As restoration proponents sought to implement projects to reconnect streams with their former floodplain, DWR’s position that projects that cause water to flow onto the former floodplain are a diversion (because the floodplain was not viewed as part of the natural stream) became a barrier to restoration projects.^[92] Most restoration projects happen voluntarily with multiple partners cobbling together multiple funding sources on a tight budget. Requiring expensive augmentation plans under these circumstances meant that many projects would be dropped, or, even if a budget could include such costs, many are often located high in the watershed where a separate “augmentation supply” is often unavailable.^[93] More importantly, DWR’s position raises the question: Must a degraded stream obtain a water right to be restored to its former natural condition?

II. Healthy Rivers are Essential to a Healthy Colorado

A. Healthy Rivers Support a Healthy River-Based Recreational Economy and Quality of Life

Access to the outdoors can be a competitive advantage, and communities across Colorado have and continue to capitalize on this advantage. Ensuring opportunities for outdoor recreation is about more than just providing jobs for seasonal raft guides or bartenders serving a tourist town; it is about providing the infrastructure (e.g. healthy flowing rivers) and access to outdoor recreation amenities that make communities desirable places to live, work, and start businesses.^[94] A well-developed body of evidence exists illustrating the ability of outdoor recreation opportunities to attract employers and high-skill workers.^[95] Water-related recreation provides essential public health and quality of life benefits. Studies have described that access and time spent around water bodies have measurable benefits to mental and physical well-being, such as enhanced physical activity and better social relationships.^[96] In Colorado, our iconic natural landscapes and waterways are unmatched in their splendor. With twenty-two million acres of public land, 105,344 miles of rivers, mountain valleys, and desert canyons, these natural wonders are, and have long been, central to Colorado’s lifestyle, heritage, and identity, and provide the basis of a world-class recreation economy.^[97]

Ensuring protection for healthy river flows is necessary to support sustainable outdoor recreation. Recent studies identify a strong and growing water-based recreation economy across the state.^[98] Between 2014 and 2019, “total economic output and tax revenue from all outdoor recreation activities in Colorado nearly doubled and jobs increased by almost 200,000.”^[99] A study commissioned by Business for Water Stewardship found that recreation taking place on or near bodies of water provides Colorado with nearly $19 billion in economic output, $2.7 billion in tax revenue, and provides 131,000 jobs.^[100] In data collected annually since 1988, the Colorado River Outfitter Association has tracked the growing economic contribution of commercial outfitting use of our rivers, which in 2022 provided $84,474,232 in direct spending.^[101] No matter the source, river-based recreation is undeniably a beneficial use of water, providing important economic value to Colorado.

Recreational use of rivers is dependent on healthy stream flows. Interestingly, the reporting on the economic impact of commercial outfitting on rivers is shown to have grown significantly over those thirty-plus years ($36 million total economic impact in 1988 compared to $216 million in 2022).^[102] However, in reviewing the annual data, notable years stick out for the significant hit the industry took. Those years are 2002, 2010, 2012, and 2020.^[103] These dates likely ring a bell to anyone paying attention to water supplies in Colorado as some of the driest on record.

The correlation between impaired rivers, water supply, and risk to water based recreational uses is becoming better understood and documented. In recent years warmer air temperatures coupled with low stream flows have caused Colorado Parks and Wildlife to restrict angling, either with voluntary or mandatory closures, on large sections of many popular recreational river reaches.^[104] This has had significant impacts on many of the most popular recreational reaches in the state such as the Yampa, Eagle, Colorado, and Roaring Fork rivers. The Yampa River is monitored by the City of Steamboat Springs, who will issue a full recreational closure of the river when stream temperatures are too high or water levels too low.^[105] The impact of these closures on local outfitting and rental companies is felt deeply, especially when these closures happen year after year.^[106] In addition to low stream flows, the high temperatures have also been found to result from a degraded river channel and reduced vegetation coverage.^[107] Healthy rivers are integral to a healthy recreation industry.

B. Protection of Recreational Rights in Colorado: How Do We Currently Protect Flows for Recreation?

1. Recreational water rights, historically speaking

Despite the many benefits of healthy rivers and streams to Colorado’s recreational economy, the ability to protect unaltered streams for recreational purposes has perhaps faced even greater resistance than that faced by attempts for environmental or stream health purposes. With narrow exceptions that perhaps prove the rule,^[108] Water Court decrees approved water rights appropriations for recreational purposes only for water held in reservoir storage.^[109] Storage of water for recreational purposes such as fishing, boating, or waterfowl hunting are considered beneficial uses of water.^[110] Further, reservoirs are allowed to be refilled for fishery and recreational beneficial uses within the state.^[111]

The difficulty in protecting water in rivers for recreational use within a stream was complicated by the adoption in 1973 by the General Assembly of Colorado’s Instream Flow Program, as discussed in Part I, supra.^[112] In vesting the CWCB the “exclusive authority” to appropriate water between two points on a stream reach without need for a diversion, enactment of the program raised legal questions (at best), or made it impossible (in the eyes of many) as to whether Colorado water users other than the CWCB may appropriate water within “two points on a streams” for any purpose whatsoever.^[113] Indeed, the CWCB in multiple instances has opposed attempts by other water users to seek to protect water within a stream for recreational, piscatorial, and other purposes.^[114]

2. A trickle that led to a flood: the City of Golden Litigation and RICDs

The first in-stream appropriation recognized for recreational purposes was not until 1992, in the so-called “boat chute” case, Thornton v. Fort Collins.^[115] In Thornton, the City of Fort Collins had installed a boat chute in an impoundment structure known as the Power Dam and Nature Dam, and was seeking to appropriate a direct flow water right of fifty-five cubic feet per second (“cfs”) to maintain a sufficient flow over the boat chute to provide for recreational boat passage.^[116] Over arguments by objectors that such an appropriation was a forbidden in-channel appropriation, the Colorado Supreme Court held the appropriation valid.^[117] Specifically, the Court held that the thirty cfs appropriation for the Power Dam and Nature Dam would “[c]ontrol water within its natural course or location by some structure or device for a beneficial use. . .”^[118] The court rejected the argument that Fort Collins was seeking a disguised minimum stream flow by distinguishing that although the Power Dam and Nature Dam were within a stream, the structures did control water for a recognized beneficial use, and were therefore a “diversion” of water.^[119] The court ultimately held that “although controlling water within its natural course or location by some structure or device may affect a result which is similar to a minimum flow, that does not mean that the appropriation effected by the structure is invalid under the Act.”^[120]

The thirty cfs water right authorized by the Colorado Supreme Court in 1992 in Thornton was the trickle that opened the floodgates when Thornton was used as the legal basis for a subsequent water rights application by the City of Golden for water rights for a whitewater boating park.^[121] The whitewater park consists of concrete structures that produce event-level whitewater features within a segment of Clear Creek. The park draws kayakers, canoers, tubers, and rafters looking to recreate and attracts spectators who in turn attract new businesses to the revitalized area.^[122] In City of Golden, Golden argued that the park provided quantifiable economic benefits to the community and that the concrete structures placed in the river to produce whitewater features were in channel “diversions” of water in the same legal sense as the boat chute in Thornton v. Fort Collins.^[123] Moreover, Golden argued that the 1,000 cfs amount of water claimed for the park was justified because such amounts were necessary for the structures to produce whitewater features that would attract boaters from across the State, the Country, and elite international competitions.^[124]

Against opposition from the CWCB, as well as other water users who viewed, with concern, the large flows of water sought in the application, the Water Court approved Golden’s application, finding that Golden accrued economic benefits as a result of the park, and finding a correlation between higher flows and economic benefits.^[125] The Water Court’s holding was immediately appealed to the Colorado Supreme Court.^[126] Charged with the momentous decision as to whether the economic benefits of a recreational economy justified the claimed recreational water rights, the Court punted. The Court upheld the Water Court’s approval of Golden’s application without a decision on a 3-3 vote, with one abstention.^[127]

The clear disagreements within the water community over the City of Golden water rights litigation, as evidenced by the Supreme Court’s 3-3 deadlock,^[128] inevitably led to a legislative compromise through the enactment of Senate Bill 216 in 2001.^[129] Senate Bill 216 was legislation intended to recognize the expansion of recreational water use and associated industry, as well as Colorado municipalities capitalizing on the economic benefits brought by Golden-type recreational whitewater parks to attract kayakers, rafters, canoeists, tubers, and other boaters.^[130] Specifically, Senate Bill 216 created a new type of water right know as a recreation in-channel diversion (“RICD”).^[131] Senate Bill 216 limited claims for RICD water rights to structures constructed within rivers, and focused on the need for communities to protect the financial investment made in such parks; “just like a traditional water right appropriation for any other purpose, recreational water rights involve a direct human use of water to generate an economic benefit that is protected under the priority system.”^[132]

3. The limitations of RICDs: is river recreation limited to whitewater parks?

The Golden water rights litigation and subsequent enactment of Senate Bill 216 has proved an advantage to river recreation. As a legal matter, Senate Bill 216 establishes that recreational use of water is a beneficial, in-channel use of water.^[133] Moreover, since its enactment communities such as Breckenridge, Vail, Steamboat Springs, Salida, Aspen, Pueblo, and many others have constructed their own whitewater parks, now important community assets.^[134] While it is critical that these recreational uses and structures have some legal mechanism to protect water needed to use them, RICDs provide protection for only a narrow use among the many different types of recreation that occurs in the rivers across Colorado.

Basing legal recognition of river-based recreation upon the construction of in-channel whitewater parks effectively limits protection of the many benefits brought by the recreational economy to only those communities with the desire and capacity to bear the costs to build and maintain an in-channel boating park. It’s notable that recognition of RICDs as a type of water right coincides with increased popularity of whitewater parks and the associated generation of a summer outdoor recreation economy, predominately in ski towns. After an initial flurry of water park construction, there have been no new applications for RICDs since 2013.

Senate Bill 216 ignored the diversity of river-based recreation that occurs in natural rivers across Colorado, in activities that include not only boating, rafting, kayaking, and canoeing but also angling, paddleboarding, float boating, and simply splashing with dogs and kids or enjoying walking along a flowing river. Studies have demonstrated the importance of these activities to how Coloradans and visitors enjoy rivers and contribute to the growing outdoor recreational economy.^[135] Despite the widespread nature of these activities, their significance to the Colorado recreational economy, and their importance to Coloradans, Senate Bill 216 and RICDs provide no protection for recreational activities that occur within a natural stream. Moreover, Colorado provides no legal protection for the numerous communities across Colorado that for decades prior to the enactment of Senate Bill 216 in 2001 developed healthy recreational economies based on services promoting enjoyment of these activities within healthy, natural rivers.

Despite the data showing the importance of river-based recreation, Colorado’s water rights system continues to be deeply skeptical about awarding water rights for protection of in-channel recreation in unaltered rivers. Over the course of 2021 and 2022, two of the authors worked on an effort to allow communities to obtain limited protection for local river reaches with the recreational value of existing features, i.e., a local whitewater run or fishing hole. The draft bill provided a process whereby a community could seek designation of a recreational reach, or Recreation In-Channel Values Reach (“RIVR”), as named in the draft bill, and identify the range of flows necessary to provide for diverse recreational experiences. The designation would not grant a water right but would allow the community to lease water and the division engineer to deliver water to the reach to achieve the needed flows.^[136]

Despite efforts to compromise, the bill ultimately proved unsuccessful, symbolizing that notwithstanding some worthwhile advances and despite all of the data demonstrating its importance, Colorado’s water rights system is reluctant to recognize a right for river recreation that takes place on an unaltered, natural river.

III. Colorado, Let’s Keep Our Rivers Healthy

As should be evident from the foregoing discussion, recognition of the value of healthy rivers is established and continues to grow. In addition to the increasing body of information demonstrating the many benefits of healthy river systems, there have been substantial increases in funding for nature-based solutions to address drought, fires, and flooding through the federal Bipartisan Infrastructure Law (“BIL”) and the Inflation Reduction Act (“IRA”),^[137] as well as state-level programs^[138] encouraging efforts to restore rivers. Restoration proponents are seeing this as an opportune moment to develop and implement these projects, especially with PBR methods, which science is demonstrating are most effective in providing ecological lift and ecosystem services.^[139] For example, a Bureau of Land Management (“BLM”) webpage explains that in addition to built infrastructure being needed to manage BLM’s lands, “effective management also relies on natural infrastructure – healthy, functioning ecosystems that deliver clean air and clean water, support wildlife, sequester carbon and are less prone to the effects of catastrophic wildfire. Our infrastructure initiatives aim to work with the landscape: to restore critical ecosystems and deliver environmental, social, and economic benefits.”^[140]

The concerning predictions of a drier future puts the weaknesses of Colorado’s water rights system in stark relief. ^[141] To maintain Colorado’s way of life in a more arid future, our systems must adequately recognize the many ways healthy rivers benefit Colorado. As discussed below in Part IV.A., there were two significant steps taken to better recognize the benefits provided by healthy natural river systems within Colorado water rights law and practice. These steps do point toward what we suggest in Part IV. B. could be an additional needed step: the adoption of Colorado water rights administrative practices that, within the State’s existing legal frameworks, work to better apply the science and needs of healthy rivers, as well as the data on recreational needs within the state. We suggest that relatively simple changes in administrative practice, together with additional research into stream needs, could help the State take better care of its rivers and water resources without demonstrable injury to water users.

A. Colorado’s Prior Appropriation System Continues to Evolve

1. Senate Bill 23-270—a win for Colorado

As discussed supra, the DWR Guidance caused great concern amongst proponents of stream restoration, fearful that restoration projects undertaken to restore natural processes and provide multiple benefits, including increased water security, would instead be seen as injurious diversions of water requiring expensive augmentation plans. In recognition of the growing awareness of the benefits of healthy river systems, the State took these concerns to heart when the State Department of Natural Resources in 2023 took the lead in drafting and obtaining approval of Senate Bill 23-270—Projects to Restore Natural Stream Systems (“SB270”).^[142] The bill’s preamble succinctly recites the importance of healthy stream systems to Colorado and the purpose of the bill: “The general assembly therefore declares that, because of the vast amount of benefits that natural streams provide the state’s communities and environment, the state should facilitate and encourage the commencement of projects that restore the environmental health of natural stream systems.”^[143]

SB270 created six types of “Minor Stream Restoration Activities” that can proceed without being subject to water rights administration.^[144] These include stabilizing the banks or substrate of a natural stream with bioengineered or natural materials, installing porous structures in ephemeral or intermittent streams to stop degradation from erosional gullies and headcuts, and installing structures in stream systems to help recover from and mitigate the tremendous impacts that occur to water supplies from wildfires and floods.^[145] For projects that do not fit within the six minor restoration activities, SB270 provided an important provision that states, “nothing in this subsection (9): creates a presumption of injury for any activity that does not meet the definition of a minor stream restoration activity.”^[146] In other words, there is no presumption of harm to water rights by projects that don’t fit within the six minor categories.

In recognizing the importance of healthy stream systems and clarifying that certain types of minor stream restoration activities are exempt from water rights administration, SB270 is an important step forward for Colorado’s streams and rivers, and widespread efforts to improve stream ecology and ecosystem services benefits as outlined supra. However, there is still concern the State’s existing administrative policy will stall restoration projects that do not fit within the SB270 Minor Stream Restoration Activities.^[147]

2 . Protection of river-based recreation on healthy rivers: cooperative management agreements

As discussed supra, outdoor recreation and specifically river-based recreational economies are trending towards growth, despite impacts felt in years of drought. Given the lack of protection within Colorado water law for river-based recreation, the non-consumptive nature of recreational water uses has enabled the creation of innovative water delivery, collaboration and agreements to provide flows benefitting river-based recreation.

On the Arkansas River, the Arkansas Voluntary Flow Management Program was carefully and purposefully crafted to ensure the continuation of the many benefits to local communities provided by rafting and angling on the Arkansas River.^[148] Under this program, water rights owned by front range municipalities such as Aurora, Colorado Springs, and Pueblo are imported through transbasin diversions and into the Arkansas basin.^[149] The Bureau of Reclamation operates upstream storage facilities for this water in the Arkansas headwaters and further downstream near Pueblo, Colorado. That water (10,000 acre-feet when available) is released by Bureau of Reclamation and then picked up from municipal use in Pueblo Reservoir.^[150] Because of the nature of this infrastructure, water for whitewater boating and angling can be released from the headwater’s facilities during the summer months to benefit Arkansas River recreation and recaptured in the downstream storage reservoir.^[151]

In some cases, water rights administration practices maintain important flows that support an established and highly valuable recreational economy. Shoshone Powerplant and the Shoshone Outage Protocol is one such example. The senior water right for the historic Shoshone Powerplant in Glenwood Canyon on the Colorado River, held by Xcel Energy, has long benefitted river-based recreation in the Colorado River, providing dependable flows for popular recreation reaches in Glenwood Canyon as well as helping to boost flows in the Upper Colorado River later in the summer.^[152] The Shoshone Outage Protocol, finalized in 2016, is intended to provide for the maintenance of flows associated with the senior Shoshone right if and when the Shoshone senior right is not exercised.^[153] Although recreational river uses are not explicitly mentioned in the purpose of this agreement, the importance of the flows to recreational uses of the Colorado river is substantial.^[154]

While cooperative agreements provide solutions for the difficulties created by Colorado’s lack of protection of river recreation, many of these agreements overlook recreational benefits as a goal, are voluntary, or allow for parties to opt out of complying in times of drought.^[155] Like RICDs, cooperative agreements have the ability to provide protection and enhancement for river-based recreation under specific circumstances. Recreational communities should continue to utilize and pursue a cooperative approach where the opportunity exists; however, there remains an opportunity for a statewide solution that helps address the limitations of the voluntary nature of cooperative agreements, water availability, and infrastructure.

B. A Modest Proposal: Colorado Water Rights System Should Again Follow the Science

As indicated, we see cooperative agreements and SB270 as important progress towards, what should be, continuing efforts by the State to protect healthy river systems. These two steps forward, together with the history of Colorado’s water rights system of following the science and incorporating the data, suggest what might be the next step forward. Specifically, in recognition of the benefits of healthy rivers and river recreation to Colorado and Colorado’s water resources, we suggest that DWR can, within its existing legal authority, exercise its administrative decisions in a manner that evaluates and considers the health of Colorado’s stream systems.

Specifically, to address restoration projects that do not fit within SB270 Minor Stream Restoration Activities, we suggest that the State’s administrative decisions do what the Colorado prior appropriation system has done before: follow the science and reconsider viewing PBR-type river restoration as an illegal and injurious “diversion” or “storage” of water. In short, we encourage the state to re-adopt its former position of utilizing the Historic Footprint Test to determine if a proposed stream restoration project needs an augmentation plan. Not only is the HFT based upon sound science, but it is also what practitioners understand how to follow as there are many well-established tools to determine what the historic extent of the stream corridor was prior to the disturbance.^[156]

The language of SB270 would seem to encourage DWR to reconsider its position. By including “no presumption of injury” language for restoration projects that fall outside of the limited definitions of the six minor restoration activities, SB270 arguably requires, and at least could inspire, DWR to evaluate whether “non-minor” restoration activities injure water users. This evaluation can be based upon the science cited supra thus far showing no harm to water rights from additional evapotranspiration and that any change in timing caused by attenuation/slowing of flows can be addressed by project design best management practices, as discussed below.

1. Colorado law does not require the State to consider PBR restoration projects a diversion or storage of water

We suggest that DWR can and should reconsider the DWR guidance that stream restoration activities seeking to reconnect the former floodplain that do not fit within SB270 equate to illegally “diverting” and “storing” water. First, such activities that encourage a stream to reconnect with its historical floodplain but within the stream’s historical footprint are not a “diversion” or “storage” of water under Colorado water law.

First, we address that such restoration activities do not “divert” water within the context of Colorado water law. C.R.S. § 37-92-103(7) defines diversion as follows:

“Diversion” or “divert” means removing water from its natural course or location, or controlling water in its natural course or location, by means of a control structure, ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device.^[157]

Colorado statute does not provide a definition of the “natural course” of a stream. While C.R.S. § 37-87-102(b) defines a “natural stream” in a fairly limited way as “a place on the surface of the earth where water naturally flows regularly or intermittently with a perceptible current between observable banks, although the location of such banks may vary under different conditions,” other language in statutes and case law encompass not simply a stream channel but the water within a stream’s alluvial aquifer.^[158] Specifically, C.R.S. § 37-92-103(11), specifies “for the purpose of defining the waters of a natural stream,” such waters include “that water in the unconsolidated alluvial aquifer of sand, gravel, and other sedimentary materials and all other waters hydraulically connected thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or natural stream.”^[159] Further, the Colorado Supreme Court has repeatedly affirmed that waters within a stream’s alluvial aquifers are part of the “natural stream.”^[160] In short, a stream includes not just its channel but all its components: main channel, side channels, floodplain, oxbows, adjacent riverine wetlands, and the hyporheic zone that hydrologically connects them all together.^[161]

Under these definitions, stream restoration activities that encourage a stream to meander and reconnect within its historical floodplain do not “divert” water from the “natural course” of a “natural stream,” as defined at C.R.S. § 37-92-103(7). Restoration activities do not rely upon “a control structure, ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device” to remove or control any water from or within its natural course, but occur solely within the “natural course” of a “natural stream,” encompassing the stream channel and unconsolidated alluvial aquifer.^[162]

Second, stream restoration does not “store” water. C.R.S. § 37-92-103(10.8) defines storage as follows:

“Storage” or “store” means the impoundment, possession, and control of water by means of a dam. Waters in underground aquifers are not in storage or stored except to the extent waters in such aquifers are placed there by other than natural means with water to which the person placing such water in the underground aquifer has a conditional or decreed right.^[163]

Restoration activities, such as construction of structures that mimic beaver dams, do not impound, possess or control water, but promote natural processes, that result in water slowing down, but still flowing through the structures, which is meant to attenuate the artificially high erosive stream flow velocities found within degraded incised streams.^[164] These slower velocities result in more water flowing into and through the alluvial aquifer surrounding a healthy river system, a process sometimes referred to as “floodplain storage or attenuation.” In fact, water in such aquifers is not “stored” as defined in C.R.S. § 37-92-103(10.8), but instead is attenuated and continues to flow through the stream channels and alluvial aquifers in a manner more consistent with historic natural stream conditions.^[165] Such floodplain attenuation of water in alluvial aquifers has not been shown to be injurious to water users; indeed, perhaps in part because floodplain attenuation allows more water to be transported within alluvial aquifers within natural stream channels without evaporative transit loss, stream restoration projects that resulted in increased beaver dam activity have revealed an increase, rather than decrease, in baseline stream flows.^[166]

Underlying DWR’s change in position from the Historical Footprint Test to the DWR Guidance that focuses upon their authority to administer diversions and storage is a concern that river restoration may perceptively reduce or change the timing of flows to downstream water users. This stems from an assumption that healthy rivers supporting riparian vegetative growth will have greater evapotranspiration (“ET”) resulting in less water available for downstream water rights holders. Although this assumption may seem logical (more plants equals more ET), as discussed supra and below, recent studies indicate it is very unlikely that the additional ET is of a quantity to cause material harm to downstream users.^[167]

The science of healthy streams and healthy water systems involves many interrelated processes and cannot be simplified to riparian vegetation equates to reduced streamflow. Scientific studies looking at streams holistically recognize reconnecting streams and rivers with their floodplains impacts many processes beyond additional vegetative growth that are beneficial to water resources, such as reduced evaporation from shading of the stream by vegetation, and increased aquifer recharge and transport. Indeed, recent studies conclude that the aquifer recharge that happens with beaver complexes “may be the most important beaver-related factor in mitigating effects from climate change because groundwater is released more gradually than surface water and has no evaporative losses.”^[168]

The results of studies examining the impact of river restoration on water supplies indicate that additional vegetation and surface area in specific instances may result in additional evapotranspiration, however, any increase in water use is so minor as to be difficult if not impossible to measure by a stream gauge downstream of the restoration project.^[169] Moreover, recent research examining the impacts of LTPBR projects on water users found no documented cases of LTPBR resulting in measurable harm to water rights from the increased transpiration of restored riparian vegetation.^[170]

Case studies have identified instances where poorly designed or timed projects did harm downstream users, but such harm was not the result of additional evapotranspiration but instead was caused by changing the timing of water delivery to downstream headgates. This can happen if the dehydrated floodplain “sponge” is expansive and takes time to re-wet or if the installed structures were built too densely.^[171] These issues can be addressed and the risk of harm to water rights greatly reduced by implementing best management practices such as project location, timing of installation, and structure density and height.^[172] Guidelines to prevent such harm have since been developed based on dozens of conversations with agencies and organizations about best practices and “lessons learned.”^[173] Thus, based on DWR’s previous approach to reviewing restoration projects, the law on diversions and storage, the science of restored streams, and these lessons learned on how to greatly reduce risk of any harm to downstream water rights, we suggest a path forward in the next section to allow restoration of streams while respecting water rights.

2. Colorado’s water rights administration should presume restoration activities that follow best practices within a stream’s historic footprint as non-injurious to streams

In short, neither the law nor the science requires the State to assume stream restoration projects that do not fit within the definitions of SB270’s six “minor stream restoration activities” are injurious to water users. Indeed, the language of SB270, in specifically providing that “nothing in this subsection (9) creates a presumption of injury for any activity that does not meet the definition of a Minor Stream Restoration Activity’’ arguably directs the State to not make such an assumption and to make injury determinations based on science.^[174]

We believe, in recognition of all the benefits provided by healthy streams, that the State’s administration of stream restoration activities must be based on an analysis of the evidence, not on a presumption of harm. This analysis might begin by looking at the recent past. Early drafts of SB270 authorized stream restoration activities based on an analysis of a stream’s “historic footprint.”^[175] A stream’s historic footprint is defined as within the historic riverine corridor extent encompassing the stream channel, associated riparian and wetland zones, and floodplain prior to disturbances that resulted in the stream’s degradation.^[176] Rather than presuming that restoration of streams creates injury by resulting in more vegetative growth than a degraded, incised channel, the Historic Footprint Test formerly utilized by DWR recognizes that restoring streams to their healthy natural state protects water users by maintaining stream conditions as they existed when water users began appropriating water over 150 years ago.^[177] The HFT is essentially how stream restoration has operated in Colorado for more than thirty years.^[178]

We suggest that DWR could use the HFT together with stream restoration “best practices” guidelines, discussed supra,^[179] as a starting point to develop, with stakeholders, DWR restoration guidelines that would recommend restoration activities comply with such practices if they wanted to proceed with the project without having to obtain an augmentation plan. Knowledge of such technical restoration practices are generally not within DWR staff expertise (i.e. they are not expected to be stream restoration practitioners as well as water rights administrators). However, the State has hired many restoration practitioners to help with other initiatives, such as creating the Fluvial Hazard Zone Program,^[180] and could do so again to assist with restoration guidelines in the context of reducing risks to downstream water users. The guidelines could include information not only on how to locate and design projects to greatly reduce the risk of harm to water rights, but also how to adjust LTPBR structures if a reduction in flows occurs that materially harms vested water rights. When requested by restoration project managers, the State could review the proposed project and presume as “non-injurious” restoration activities confirmed to be within a stream’s historic footprint and in compliance with best practices guidelines.^[181] As was previously the case, requesting DWR review would be voluntary for project managers and the review letter from DWR would serve as an assurance of DWR’s viewpoint, but downstream water holders would retain their usual rights and processes for injury claims if the project caused material harm.^[182]

C. A Less Modest Proposal: Protecting Colorado’s Rivers and Recreational Economy Through Coordinated Water Rights Administration

In the short term, the historic footprint test is a sensible administrative tool to assist the State in better realizing the benefits of healthy rivers. We suggest, however, that in the face of climate change, State water policy that passively allows river restoration activities to occur is inadequate. In view of the importance of healthy river systems to our water-short future, we encourage the State to take on a greater role in protecting the streams and rivers that protect us, and, in the words of the preamble of SB270, actively “facilitate and encourage the commencement of projects that restore the environmental health of natural stream systems.”^[183]

The Arkansas Voluntary Flow Program provides an important clue as to what that might look like. While the benefit provided by this Program is clear, the shortcomings are clear as well: the Program addresses one type of recreational need on one river. How could this success be expanded upon?

The State Engineer, as head of DWR, supervises seven Division Engineers in seven Basin Divisions, collectively overseeing over a hundred water commissioners in seventy-seven water districts administering water rights stored in the over 4,000 lakes and reservoirs across Colorado.^[184] The State Engineer could look to the Arkansas Voluntary Flow Program in developing guidelines that would work towards identifying and quantifying specific river and river recreational needs at hundreds of locations across the State, and coordinating reservoir releases from the thousands of reservoirs across Colorado subject to DWR to meet these needs.

As discussed at length supra, the general benefits of maintaining healthy rivers are well documented.^[185] Moreover, studies have begun identifying specific locations within Colorado where timing of reservoir releases could assist in protecting river health.^[186] The Upper Colorado River Wild and Scenic stakeholder group has documented opportunities on the Upper Colorado River where coordination of reservoir releases could facilitate a flushing flow that would encourage channel maintenance functions and processes and address temperature concerns, while also benefiting downstream recreational fishing and boating.^[187] Similarly, a recent study identifies stream reaches protected by decreed instream flow rights too junior to adequately protect stream flows, and suggests how timed releases from upstream reservoirs could provide such reaches with additional flows when most needed.^[188]

Similar efforts are underway, documenting and quantifying river recreation needs. The State’s draft Basin Implementation Plan Guidance document (“BIP Guidance”), released by the Colorado Water Conservation Board as guidance for development of Colorado’s eight Basin Implementation Plans (for the Arkansas, Colorado, Gunnison, North Platte, Rio Grande, South Platte, Southwest, and Yampa-White-Green river basins), recommends increased quantification of recreational values such as boating and fishing and calls for evaluation of non-consumptive needs in terms of “measurable outcomes,” data, and assessment through use of a flow-evaluation methodology.^[189] The eight completed Basin Implementation Plans called for by the BIP Guidance have quantified local recreational needs using such methodology as a part of the management planning process.^[190] Such quantification of recreational needs can be used to better time reservoir releases to support river recreation. Stakeholders of the Aspinall Working Group have been reviewing such data in considering retiming reservoir releases to benefit downstream recreational boating needs.^[191]

State water officials administer releases from reservoirs for many different reasons, including for delivery to a downstream water user, as a replacement supply for an exchange, or pursuant to an interstate compact.^[192] Some types of releases, such as those made under an augmentation plan, may be subject to specific timing requirements; others may be subject to more administrative discretion depending on river conditions and water user needs. DWR has made available General Administration Guidelines for Reservoirs (“Reservoir Guidelines”) describing factors water officials may consider in exercising that discretion, as well as when specific administrative actions, such as imposition of a “paper fill,” are necessary to prevent injury to water users.^[193]

Notably, the Reservoir Guidelines do not address when and under what circumstances releases or other administrative operations might be coordinated to better benefit quantified river health and recreation needs. We recommend considering that change. As more quantified, specific data regarding river needs becomes available, DWR could and should play a more active role in evaluating such data and assisting with identification of circumstances where administrative practices, such as reservoir releases, could be tailored to address a quantified river need without measurable impact on water users. In short, DWR’s administrative practices could, over time, begin to protect the State’s natural water infrastructure, and our healthy river systems.

Conclusion

The science is not complete—and the data is still being collected—but one conclusion is inescapable: Healthy river systems provide critical benefits to Colorado, Coloradans, and Colorado’s water resources. The reluctance of Colorado’s water rights system to acknowledge and recognize those benefits, however, has left those benefits and our rivers and streams inadequately protected.

We suggest the State begin addressing this lack of protection through development and implementation of administrative practices that follow the science recognizing the many critical roles healthy rivers play as part of the State’s natural water infrastructure. The State could do this, in the short term, by reconsidering its current administrative position regarding stream restoration activities and, in the longer term, by implementing administrative practices that actively work to support and protect the many benefits healthy rivers provide Colorado.

Our water rights system must continue to evolve to recognize a river is not a ditch, but something much, much greater: a system of interwoven processes serving and protecting us all, people and nature.

1. *Senior Staff Attorney, Healthy Rivers Program, Western Resource Advocates, Boulder, CO. ↑
2. **Southern Rockies Stewardship Director, American Whitewater, Carbondale, CO. ↑
3. ***Attorney and Owner of Corday Natural Resources Consulting, Montrose, CO. ↑
4. ****JD, LL.M., Water Law Fellow, Getches-Wilkinson Center for Natural Resources, Energy, and the Environment, Boulder, CO. ↑
5. As a practical matter, Colorado’s water rights system is administered based on law set forth in Colorado statute and Colorado Supreme Court decisions, as well as administrative guidance, guidelines, and other administrative practices of the Colorado Division of Water Resources. This Article will at times refer generally to both of these aspects of Colorado water rights administration as “Colorado’s water rights system.” ↑
6. See, e.g. Colo. Const. art. XVI, § 6 (“[t]he right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied”). ↑
7. See, e.g., Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1148 (Colo. 2001) (“[t]he priority of a water right is a function of appropriation and adjudication, and is the most important stick in the water rights bundle”). ↑
8. See, e.g., Cnty. of Boulder v. Boulder & Weld Cnty. Ditch Co., 367 P.3d 1179, 1186 (Colo. 2016) (noting that by the 1960s many of Colorado’s river systems were over-appropriated). ↑
9. See, e.g., Reagle v. Square S. Land & Cattle Co., 296 P.2d 235, 236 (1956) (first in time is first in right is the basic principle applicable to all appropriations of water); see also Town of Sterling v. Pawnee Ditch Extension Co., 94 P. 339, 350 (Colo. 1908) (seeming preference in Colorado Constitution for domestic over other uses does not override prior appropriation). ↑
10. Kurt D. Fausch, et al., Landscapes to Riverscapes: Bridging the Gap Between Research and Conservation of Stream Fishes, 52 BioScience 483, 485 (2002) (“We perceive a need to conceptualize rivers not as sampling points, lines, or gradients, but as spatially continuous longitudinal and lateral mosaics. As such, heterogeneity in the river landscape, or riverscape, becomes the focus of study.”); Joseph M. Wheaton et al., Utah State Univ. Restoration Consortium, Low-Tech Process-Based Restoration of Riverscapes: Design Manual 2 (2019) (“Riverscapes are composed of connected floodplain and channel habitats that together make up the valley bottom.”). ↑
11. How is river health defined or measured? There is no universally adopted definition or metrics, but traditionally water quality is the dominant factor based upon the Clean Water Act requirements for monitoring of physical (temperature, turbidity) and chemical (pH, dissolved oxygen, salinity, nutrients, metals) characteristics and to a lesser extent biological data (aquatic insects, fish, peri and phytoplankton). See Clean Water Act (CWA) Compliance Monitoring, U.S. Env’t Prot. Agency, https://www.epa.gov/compliance/clean-water-act-cwa-compliance-monitoring (last visited April 16, 2024). However, WQ data alone falls far short of assessing ecosystem function. Publications from the late 1990s helped cement the concepts of river health that included a more comprehensive examination of the relationships between environmental variables that affect aquatic biota, such as habitat structure, flow regime, energy sources, and biological condition. Richard H. Norris & Martin C. Thoms, What is river health?, 41 Freshwater Biology 197, 197–209 (1999); James R. Karr, Defining and measuring river health, 41 Freshwater Biology 221, 221–234, (1999). University of Washington Professor James Karr noted that “the 1972 US Water Pollution Control Act Amendments (now called the Clean Water Act, section 101(1)) set a standard for answering the question ‘What is river health?’ It said: ‘The objective is to restore and maintain the chemical, physical, and biological integrity of the Nations’ waters.’” James R. Karr, Defining and measuring river health, 41 Freshwater Biology 221, 221–234, (1999). Again, even this broader focus beyond water quality to include factors affecting aquatic biota is still relatively narrow. Important advancements have been made in the past two decades in shifting assessments from mainly an analysis of the river channel and adjacent riparian vegetation to thinking instead more holistically about the entire river corridor, or “riverscape,” and the processes that take place within that space that are vital to overall river health. Fausch et al., supra note 6, at 486. In summary, we use the term in this paper “healthy natural stream system” to generally mean riverscapes that are connected to their floodplains (not incised or channelized with levies, rip rap etc.), native riparian and riverine wetland vegetation is in good condition (the native species diversity and density that would be normally present are present), in addition to the other chemical, biological, physical factors listed above. ↑
12. See specific discussion of these issues and citations for studies documenting these benefits infra Section I. ↑
13. The most comprehensive report around the economic benefits of beaver created wetlands analyzed forty-three studies that focused on the ecosystem services of North American and Eurasian beavers. Stella Thompson et al., Ecosystem services provided by beavers Castor spp., 51 Mammal Rev. 25, 25–39 (2020). This study determined that habitat and biodiversity, non-consumptive recreation, and moderation of extreme events (flood/drought) are particularly valuable services, in addition to water purification. Id. ↑
14. The Economic Contributions of Water-related Outdoor Recreation in Colorado, Bus. for Water Stewardship & Southwick Associates iii (Feb. 28, 2020), https://waterforcolorado.org/wp-content/uploads/2020/03/Southwick-Technical-report-2020.pdf. ↑
15. For purposes of this article, “water security” is defined as “the adaptive capacity to safeguard the sustainable availability of, access to, and safe use of an adequate, reliable and resilient quantity and quality of water for health, livelihoods, ecosystems, and productive economies.” Eric Viala, What is Water Security?, USAID Global Waters, https:// www.globalwaters.org/resources/blogs/swp/what-water-security (last visited Jan. 5, 2024). ↑
16. S.B. 23-270, 74th Gen. Assemb., 1st Reg. Sess. (Colo. 2023) (codified at Colo. Rev. Stat. § 37-92-602(9)) (“Senate Bill 270” or “SB270”). ↑
17. See supra note 5. ↑
18. Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming all rely on the prior appropriation doctrine within their water regulatory system. Scott Hendrick, State Water Withdrawal Regulations, Nat’l Conf. of State Legislatures (Feb. 20, 2013), https://web.archive.org/web/20160307122108/ https://www.ncsl.org/research/environment-and-natural-resources/state-water-withdrawal-regulations.aspx. ↑
19. See, e.g., City of Boulder v. Boulder & Weld Cty. Ditch Co., 367 P.3d 1179, 1186 (noting that prior to the 1960s groundwater well usage went largely unregulated). ↑
20. Colorado Groundwater Management Act of 1965, Colo. Rev. Stat. §§ 37-90-101‑143 (2023). ↑
21. Water Right Determination and Administration Act of 1969, Colo. Rev. Stat. §§ 37-92-101-602 (2023). ↑
22. Among other provisions, the 1965 Groundwater Management Act required water users to obtain a permit for new groundwater wells and required the State Engineer in issuing such permits to determine whether or not such groundwater well will injure water rights. See Colo. Rev. Stat. §§ 37-90-137(1)–(2). The Water Rights Determination and Administration Act of 1969 prohibits water courts from ruling on water rights applications that require construction of a well without first reviewing the division engineer’s consultation report. See Colo. Rev. Stat. § 37-92-302(2)(a). ↑
23. Simpson v. Bijou Irrigation Co., 69 P.3d 50, 64–65 (Colo. 2003). ↑
24. See, e.g., Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252, 254 (Colo. 2008); San Antonio, Los Pinos and Conejos River Acequia Preservation Ass’n v. Special Improvement Dist. No. 1 of Rio Grande Water Conservation Dist., 270 P.3d 927, 933 (Colo. 2011). ↑
25. Simpson v. Cotton Creek Circles, 181 P.3d at 257 (citing Colo. Rev. Stat. §§ 37-90-102(3)(a), 37-90-137(12)(b)(I) (2003) (repealed in 2004), and § 37-92-501(4)(a)). ↑
26. See San Antonio, Los Pinos and Conejos River Acequia Preservation Ass’n, 270 P.3d at 933. ↑
27. Id. ↑
28. Ellen Wohl et al., The Science and Practice of River Restoration, 51 Water Res. Rsch. 5974, 5976 (2015). ↑
29. Id. at 5975–76. ↑
30. “Both geomorphology and biology were evaluated in 94 projects, but improvement in both stream functions was documented in only 25.” Will Harman & Melanie Carter, A Function-Based Review of Stream Restoration Science, Env’t L. Inst. 11 (2016), https://www.eli.org/sites/default/files/docs/research/schools/stream_mitigation_science _paper_2mar16.pdf. This result is similar to a review of 78 restoration projects. Margaret A. Palmer, Holly L. Menninger, & Emily Bernhardt, River restoration, habitat heterogeneity and biodiversity: a failure of theory or practice?, 55 Freshwater Biology 205, 205 (2010). ↑
31. Fausch et al., supra note 6, at 486; Utah Univ. Restoration Consortium, supra note 6, at 11. ↑
32. Damion C. Ciotti et al., Design Criteria for Process-Based Restoration of Fluvial Systems, 71 BioScience 831, 832–33 (2021). CSU Professor Dr. Ellen Wohl explains “[W]e should be aiming to restore a dynamic state as characterized by spatial and temporal variations in biotic abundance and composition that reflect[s] those in [undisturbed] reference systems, and channel geometry that changes in response to natural flow variability.” Wohl et al., supra note 24, at 5981. ↑
33. Timothy J. Beechie et al., Process-based Principles for Restoring River Ecosystems, 60 BioScience 209, 209–10, 218 (2010). ↑
34. The Disappearing West, Ctr. for Am. Progress, https://disappearingwest.org/rivers.html#big_picture (last visited Jan. 5, 2024). The floodplain alteration data in the Disappearing West report is consistent with an Environmental Protection Agency (EPA) finding in its 2013–2014 Western Mountain Ecoregion Rivers and Streams Assessment that ranks riparian vegetation condition from poor to fair on 61 percent of the streams. Western Mountains Ecoregion—National Rivers and Streams Assessment 2013–14, U.S. Env’t Prot. Agency, https://www.epa.gov/national-aquatic-resource-surveys/western-mountains-ecoregion-national-rivers-and-streams (last visited Jan. 5, 2024). ↑
35. Boris Poff et al., Threats to Western United States Riparian Ecosystems: A Bibliography at 7 (2012); Adnan Rajib et al., Human alternations of the global floodplains 1992-2019, 10 Sci. Data, July 2023, at 5. ↑
36. Michael M. Pollock et al., Using Beaver Dams to Restore Incised Stream Ecosystems, 64 BioScience 279, 290 (2014). ↑
37. Rachael Davee et al., Using Beaver Dam Analogues for Fish and Wildlife Recovery on Public and Private Rangelands in Eastern Oregon, USDA Northwest Climate Hub, at 17 (2019). ↑
38. Utah State Univ. Restoration Consortium, supra note 6, at 6, 9–10 (2019). ↑
39. Id. at 23, 35. ↑
40. Annegret Larsen et al., Dam builders and their works: Beaver influences on the structure and function of river corridor hydrology, geomorphology, biogeochemistry and ecosystems, 218 Earth-Science Revs. 1, 8 (2021); Glennis Hood & Suzanne Bayley, Beaver (Castor canadensis) mitigate the effects of climate on the area of open water in boreal wetlands in western Canada, 141 Biological Conservation 556, 557, 564 (2008);See also Jacquelyn M. Corday, Restoring western Headwater streams with Low-Tech Process-Based Methods: A Review of the Science and Case Study Results, Challenges, and Opportunities, Version 2.0, Am. Rivers 6 (2024) (hereinafter “Corday LTPBR Report”). ↑
41. Richard L. Knox et al., Levees don’t protect, they disconnect: A critical review of how artificial levees impact floodplain functions, 837 Sci. Total Env’t 1, 2 (2022); Anna Serr-Llobet et al., Restoring Rivers and Floodplains for Habitat and Flood Risk Reduction: Experiences in Multi-Benefit Floodplain Management From California and Germany, 9 Frontiers in Env’t Sci. 1, 2 (2022). ↑
42. Emily Fairfax & Andrew Whittle, Smokey the Beaver: beaver-dammed riparian corridors stay green during wildfire throughout the western United States, 30 Ecological Applications 1 (2020); see also Isobel Whitcome, Beaver Dams Help Wildfire-Ravaged Ecosystems Recover Long after Flames Subside, Scientific Am. (Feb. 7, 2022), https://www.scientificamerican.com/article/beaver-dams-help-wildfire-ravaged-ecosystems-recover-long-after-flames-subside. ↑
43. See generally Desneiges Murray et al., Source or sink? Quantifying beaver pond influence on non-point source pollutant transport in the Intermountain, 285 J. Env’t Mgmt. 1 (2021); Nicholas J. Shepard & Robert W. Nairn, Metals retention in a net alkaline mine drainage impacted stream due to the colonization of the North American Beaver, 731 Sci. Total Env’t 1 (2020); Julia G. Lazaret et al., Beaver Ponds: Resurgent Nitrogen Sinks for Rural Watersheds in the Northeastern United States, 44 J. Env’t Quality 1684 (2015). ↑
44. Milada Majerova et al., Impacts of beaver dams on hydrologic and temperature regimes in a mountain stream, 19 Hydrology & Earth Sys. Sciences Discussions 3541, 3541 (2015); Nicholas Weber et al., Alteration of stream temperature by natural and artificial beaver dams, 12 PLoS One 1 (2017). ↑
45. Alan Puttock et al., Sediment and Nutrient Storage in a Beaver Engineered Wetland, 43 Earth Surface Processes & Landforms 2358 (2018); ↑
46. Id.; Sarah B. Dunn, Dammed Ponds! A study of Post-Fire Sediment and Carbon Dynamics in Beaver Ponds and Their Contributions to Watershed Resilience (2023) (Masters Thesis, Colorado State University) (Mountain Scholar). ↑
47. Jeremy Maestas et al., Water Is Life: Importance and Management of Riparian Areas for Rangeland Wildlife in Rangeland Wildlife Ecology & Conservation 177, 177 (Lance B. McNew et al., 2023). ↑
48. Valerio Orazi et al., A Biodiversity Boost from the Eurasian Beaver in Germany’s Oldest National Park, 10 Frontiers in Ecology & Evolutions 1 (2022); Hillary A. Cooke & Steve Zack, Influence of beaver dam density on riparian areas and riparian birds in shrubsteppe of Wyoming, 68 Western N. Am. Naturalist 365 (2007) (A Wyoming study of 11 streams in sagebrush steppe areas in Wyoming found that “total species richness, total abundance, and aquatic assemblage abundance were each positively correlated with [beaver] dam density, suggesting that dam density is related to other riparian characteristics selected by birds.”) ↑
49. Nicholas L. Silverman et al., Low-tech Riparian and Wet Meadow Restoration Increases Vegetation Productivity and Resilience Across Semi-arid Rangelands, 27 Restoration Ecology 269 (2018). ↑
50. See generally Susan Charnley, Beavers, Landowners, and Watershed Restoration: Experimenting with Beaver Dam Analogues in the Scott River Basin, California, U.S. Dep’t Agric., Forest Service, Pacific Northwest Rsch. Station (2018) (Res. Pap. PNW-RP-613); Sylvia Kantor, Ranchers, Beavers, and Stream Restoration on Western Rangelands, U.S. Dep’t Agric., Forest Service: Sci. Findings (2020). ↑
51. Chris E. Jordan & Emily Fairfax, Beaver: North American Freshwater Climate Action Plan, 9 WIREs Water 1, 7 (2022) (“Our fish, water, and forests depend on our willingness to act. We cannot just continue to study the situation without also taking action. There is absolutely more research that needs to be done to optimize and quantify beaver-based restoration impacts across all spatial and temporal scales . . . However, given the trajectory of climate change and increasingly threatened water resources we simply do not have that kind of time. Thus, we should implement, and continue to study, process-based methods in degraded streams across the continent, now.”). ↑
52. Peter Skidmore & Joseph Wheaton, Riverscapes as natural infrastructure: Meeting challenges of climate adaptation and ecosystem restoration, 38 Anthropocene 1, 5 (2022). ↑
53. Pond Management & Restoration Projects, Colo. Div. of Water Resources, https://dwr.colorado.gov/services/water-administration/pond-management-restoration-projects (last visited April 28, 2024). This issue is discussed infra in Section I.C.2. ↑
54. Colo. Rev. Stat. § 37-92-102(3) (2022); Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 594 P.2d 570, 573 (Colo. 1979). ↑
55. Steven J. Shupe, The Legal Evolution of Colorado’s Instream Flow Program, 17 Colo. Law. 861, 861 (1988) (citing Colo. Rev. Stat. § 37-92-102(3), (2006)). ↑
56. Colo. River Water Conservation Dist., 594 P.2d at 573; In re Water Right of the City of Central v. City of Central, 125 P.3d 424, 438 (Colo. 2005). ↑
57. City of Central, 125 P.3d at 438. ↑
58. S.B. 73-97 (Colo. 2006) (codified at Colo. Rev. Stat. § 37-92-102(3) (2006)). ↑
59. Id. ↑
60. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1260 (1995). ↑
61. Id. ↑
62. Id. ↑
63. Colo. Rev. Stat. § 37-92-102(3) (2023). ↑
64. Edward R. Kowalski & Megan Dickey-Griffith, Colorado Water Conservation Board, in Colorado Water Law Benchbook, First Ed. 10-1, 10-3, 10-5 (Carrie L. Ciliberto and Timothy J. Flanagan, eds., CLE in Colo., Inc. Supp. 2014). For a tabulation of all of the water rights held by the CWCB, see http://www.cwcb.state.co.us. ↑
65. See Instream Flow Program, Colo. Water Conservation Bd., https://cwcb.colorado.gov/focus-areas/ecosystem-health/instream-flow-program (last visited Apr. 16, 2024). ↑
66. Colo. Rev. Stat. § 37-92-102(3) (2023). ↑
67. Id. § 37-92-102(3). ↑
68. See, e.g., In re Water Right of the City of Central v. City of Central, 125 P.3d 424, 439 (Colo. 2005) (as post–1973 appropriations, the Board’s instream flow rights are relatively junior in the hierarchy of users). ↑
69. Corday LTPBR Report, supra note 36, at 9. The Corday LTPBR Report was most recently cited in the joint Department of the Interior and Duke University comprehensive report. See Katie Warnell et al., Department of the Interior Nature-Based Solutions Roadmap, Nicholas Inst. for Energy, Env’t & Sustainability (2023), https://www. doi.gov/sites/doi.gov/files/doi-nbs-roadmap.pdf. ↑
70. Colorado Water Conservation Board Department of Natural Resources, Colorado Water Plan, 204 (2023). ↑
71. Corday LTPBR Report, supra note 36, at 3; See Beechie et al., supra note 29, at 209–10. ↑
72. Corday LTPBR Report, supra note 36, at 8–40. ↑
73. Colorado Water Conservation Board Department of Natural Resources, Colorado Water Plan, 204 (2023); Colorado Water Conservation Board Department of Natural Resources, Water Plan: Executive Summary, 16 (2023) “Colorado’s watersheds hold the future of our water supply . . . As our state’s water source, the health of watersheds affects agriculture, downstream communities, recreation, tourism, and ecosystem function.” ↑
74. See generally Charnley, supra note 46; Kantor, supra note 46. ↑
75. Corday LTPBR Report, supra note 36, at 9. ↑
76. Letter from Jeff Deatherage, Chief of Water Supply, Division of Water Resources, to Stephen Decker, U.S. Army Corps of Engineers, Omaha District, (June 29, 2017) (on file with author). This information is also based upon numerous conversations authorCorday had while she was the Water Resources Section Manager with Colorado Parks and Wildlife (CPW) with staff who are familiar with CPW’s stream restoration projects directly carried out by CPW staff and restoration projects carried out by others who received grant funding through CPW’s Wetland Wildlife Conservation Program. This was also confirmed by obtaining copies of several other letters from DWR staff (in addition to the 2017 letter) responding to restoration project managers who requested project review as detailed infra in note 76. ↑
77. Beechie et al., supra note 29, at 209–10; Wohl et al., supra note 24, at 5976. ↑
78. Beechie et al., supra note 29, at 209–10. ↑
79. Utah State Univ. Restoration Consortium, supra note 6, at 1–10 (2019). ↑
80. The “historical footprint” test is explained in two letters from Jeff Deatherage, P.E., then Chief of Water Supply for DWR, dated March 29, 2019 and June 29, 2017. In the June 29, 2017 letter, Mr. Deatherage states that DWR does not object to the proposed restoration activities because historically the “Creek used to be shallower, wider, braided, and slower flowing than it is today.” Mr. Deatherage concludes that “this office does not object to the project as on the basis that the areas of restored riparian vegetation would be no greater than the areas that historically existed, so as to not cause any more water consumption than occurred under historical conditions.” Letter from Jeff Deatherage, Chief of Water Supply, Division of Water Resources, to Stephen Decker, U.S. Army Corp of Engineers (June 29, 2017) (on file with author). ↑
81. Id. ↑
82. Colo. Div. of Water Resources, supra note 49. ↑
83. Id. ↑
84. Id. ↑
85. Id. The relevant part of the DWR Guidance provides:If a project proponent requests input, our staff will review the project and consider, based on the range of conditions in the vicinity of the project site, whether certain project elements will result in injury to vested water rights. The response will describe if the project will require the Division Engineer to issue an order, particularly one of the following types:(1) discontinue a diversion that is causing material injury;(2) release any water that has been illegally or improperly stored;(3) clear streams of unnecessary dams and obstructions that restrict or impede the flow of water. ↑
86. Becky Bolinger et al., Climate Change in Colorado: A Report for the Colorado Conservation Board, Colo. State. Univ. (2024), https://climatechange.colostate.edu/ downloads/CCC 2024 Climate Assessment Report pages view.pdf. ↑
87. This information is based upon numerous conservations author Corday had beginning in 2019 with many stream restoration practitioners, federal and state agency staff, and nonprofit organizations who work on and/or fund stream restoration. These conversations and meetings led to the formation of the Colorado Healthy Headwaters Working Group (“HHWG”) in early 2020 to work together on addressing barriers to scaling up headwaters restoration, including the uncertainty around water rights. Members of HHWG include about eight attorneys who have worked on water law and policy for many years. Suggested guidance for stream restoration practices to greatly reduce the risk of harming downstream water users is discussed infra in Section II.B.1. ↑
88. Colo. Rev. Stat. § 37-92-102(1)(b) (2023), which defined “natural stream” many decades ago. ↑
89. Ellen Wohl et al., Rediscovering, Reevaluating, and Restoring Lost River-Wetland Corridors, 9 Frontiers in Earth Science 1, 2 (2021) (Thanks to Senate Bill 23-270, Colorado law now specifically recognizes the values of healthy connected floodplains and there is a new definition for “natural stream system” that include the “geomorphologic floodplain.”). ↑
90. Id. at 2. (“We define a river-wetland corridor as a relatively wide valley floor within which there is space for persistent alluvial deposits and sufficient connectivity between surface and subsurface hydrology to create and maintain an interacting system of channels, wetlands, and floodplain ponds and lakes.”). ↑
91. Fausch et al., supra note 6, at 486; Utah University restoration, supra note 6, at 21 (“Riverscapes are composed of connected floodplain and channel habitats that together make up the valley bottom.”). ↑
92. Supra note 76. ↑
93. Based upon the experience of authors Corday and Cyran with four years of conversations with HHWG members as explained supra in note 76. ↑
94. Ray Rasker et al., The Effect of Protected Federal Lands on Economic Prosperity in the Non-metropolitan West, 43 J. Reg’l Analysis & Pol’y 110, 120 (2013), https:// headwaterseconomics.org/wp-content/uploads/ProtectedPublicLands_Manuscript_2012.pdf (finding a relationship between the amount of protected public land, higher per capita income levels in 2010, and faster growth of per capita income and investment earnings between 1990 and 2010.). The study concluded that this may be due to the fact that “in today’s economy a premium is placed on the ability of communities to attract talented workers, and the environmental and recreational amenities provided by national parks and other protected lands serve to attract and retain talented people who earn above average wages, and have above average wealth, such as investment income.” Id. ↑
95. See, e.g., Sonoran Institute, The Capitalization of Our Climate: Attracting Highly Skilled Workers to Arizona’s Sun Corridor (2013), https://sonoraninstitute.org/files/pdf/the-capitalization-of-our-climate-attracting-highly-skilled-workers-to-arizonas-sun-corridor-09172013.pdf. ↑
96. Michail Georgiou & Sebastien Chastin, This is how urban ‘blue spaces’ can improve our health, World Econ. F. (Mar. 18, 2021), https://www.weforum.org/agenda /2021/03/blue-spaces-water-improve-mental-health-says-study/. ↑
97. Colorado Outdoor Recreation Industry Office, Colo. Off. of Econ. Dev. & Int’l Trade, https://oedit.colorado.gov/colorado-outdoor-recreation-industry-office (last visited Apr. 16, 2024). ↑
98. Colorado River Outfitters Association, Commercial River Use in the State of Colorado 1988–2022 at 4 (2022). ↑
99. Colorado Parks and Wildlife, The 2019 Statewide Comprehensive Outdoor Recreation Plan, 4 (2019), https://cpw.state.co.us/Documents/Trails/SCORP/Final-Plan/2019-SCORP-Report.pdf. ↑
100. Bus. for Water Stewardship & Southwick Associates, supra note 10, at iii. ↑
101. Colo. River Outfitters Ass’n, Commercial River Use in the State of Colorado 1988-2022 5 (2022), https://www.croa.org/wp-content/uploads/2023/06/2022-CROA-Commercial-Rafting-Use-Report.pdf. ↑
102. Id. at 6–7 ↑
103. Id. The Colorado River Outfitter Report for 2020 indicates that the impact of the COVID-19 pandemic was outsized for the commercial outfitting industry due to delayed business opening and reduced travel. Colo. River Outfitters Ass’n, Commercial River Use in the State of Colorado 1988-2020 2 (2020), https://www.croa.org/wp-content/uploads/2021/04/2020-Commercial-Rafing-Use-Report.pdf. ↑
104. See, e.g., John Meyer, “Voluntary” Fishing Closure on 120-mile Section of the Colorado River, Denver Post (July 7, 2021), https://www.denverpost.com/2021/07/07/ colorado-river-fishing-closure/. ↑
105. Trevor Ballantyne, In review of Yampa River use, Steamboat officials make reopening criteria more specific, Steamboat Pilot & Today (Nov. 2, 2023), https:// www.steamboatpilot.com/news/in-review-of-yampa-river-use-steamboat-officials-make-reopening-criteria-more-specific/. ↑
106. Michael Booth, Colorado closes popular stretch of Yampa River to fishing as Western Slope drought hits summer plans early, Colorado Sun (May 25, 2021), https://coloradosun.com/2021/05/25/colorado-closes-stretch-of-yampa-river-to-fishing-as-western-slope-drought-hits-summer-plans/. ↑
107. Ecometrics, Lotic Hydrological, & Acclivity Associates, Water Temperature Management Opportunities on the Yampa River 17 (Feb. 2018), https://www.steamboatsprings.net/DocumentCenter/View/14900/Appendix-E-Water-Temperature-Management-Opportunities-Summary-Report?bidId=. ↑
108. In Board of Cnty. Comm’rs of Cnty. of Arapahoe v. Collard, 827 P.2d 546, 548–52 (Colo. 1992), the Colorado Supreme Court dismissed an attempt by Arapahoe County to void a prior water court decree awarding what the Court admitted were private instream flow rights for sixty cubic feet per second for “stockwater, recreation, fish culture, wildlife procreation and heritage preservation. . . .” Arapahoe claimed the Water Court had been without jurisdiction to award private instream flow rights, for the asserted reason that only the CWCB could hold such rights. The Court explicitly avoided opining as to whether private parties could hold instream flow rights, holding After Collard, legal developments arguably bolstered CWCB’s argument for exclusive authority over instream rights. See Linda J. Bassi et al., ISF Law—Stories about the Origin and Evolution of Colorado’s Instream Flow Law in this Prior Appropriation State, 22 U. Denv. Water L. Rev. 389, 405–408 (2010). ↑
109. See In re Applications for Water Rights of Upper Gunnison River Water Conservancy Dist., 838 P.2d 840, 849–50 (Colo.1992) (distinguishing rights to store water for later release for instream fishery and boating purposes from instream flow rights). ↑
110. Colo. Rev. Stat. § 37-92-103(4) (2023). ↑
111. In re Applications for Water Rights of Upper Gunnison River Water Conservancy Dist., 838 P.2d at 851. ↑
112. S. B. 73-97, codified at Colo. Rev. Stat. § 37-92-102(3) (2006). ↑
113. Id. (S.B. 97 allowed the CWCB to appropriate minimum stream flows between designated points on a stream to preserve the natural environment to a reasonable degree.). ↑
114. See, e.g. In re Applications for Water Rights of Upper Gunnison River Water Conservancy Dist., 838 P.2d at 849–50 (CWCB opposed storage right appropriated to make releases for piscatorial purposes as infringing on its exclusive authority to claim instream flow water rights); City of Thornton v. City of Fort Collins, 830 P.2d 915, 919–20 (Colo. 1992) (CWCB similarly opposed application for water right for boat chute as impermissible instream flow right); See Press Release, Colorado River District, Elkhead Reservoir: River District and Partners Work to Postpone Yampa River Call (Aug. 5, 2021), https://www.coloradoriverdistrict.org/river-district-partners-postpone-yampa-call/. ↑
115. City of Thornton, 830 P.2d at 919–20. ↑
116. Id. ↑
117. Id. at 930. ↑
118. Id. ↑
119. Id. at 930 (citing Colo. Rev. Stat. § 37-920-103(4)) (“Beneficial use is defined . . . as: the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made . . .”). ↑
120. Id. at 931. ↑
121. Glenn E. Porzak et al., Recreation Water Rights: “The Inside Story,” 10 U. Denv. Water L. Rev. 209, 214–224 (2007). ↑
122. Marcia Hagenstad et al., Preliminary Evaluation of the Beneficial Value of Water Diverted in the Clear Creek Whitewater Park in the City of Golden (Dec. 7, 2000). ↑
123. Application for Water Rights of the City of Golden, District Court, Water Division No. 1, State of Colorado, In re Application for Water Rights of the City of Golden, No. 98CW448 (June 13, 2001). ↑
124. Decree, District Court, Water Division No. 1, State of Colorado, Concerning the Application for Water Rights of the City of Golden, No. 98CW448 at (E)(7)-(8) (June 13, 2001). ↑
125. Decree, District Court, Water Division No. 1, State of Colorado, In re Application for Water Rights of the City of Golden, No. 98CW448 (June 13, 2001). ↑
126. See Colo. Rev. Stat. §§ 37-92-304(7)_–(9) (Colorado Water Court matters are appealed directly to the Colorado Supreme Court); Colo. R. App. P. 1(a)(2) (“. . . a judgement and decree, or any portion thereof, in a proceeding concerning water rights, an order refusing, granting, modifying, cancelling, affirming or continuing in whole or in part a conditional water right, or a determination that reasonable diligence or progress has or has not been shown in an enterprise granted a conditional water right”). The Supreme Court has direct appellate review jurisdiction over water adjudications. See Colo. Ground Water Comm’n v. N. Kiowa-Bijou Groundwater Management Dist., 77 P.3d 62, 69 n.6 (Colo. 2003); Colo. Const. art. VI, § 2(2); Colo. Rev. Stat. § 13-4-102(1)(d); Colo. R. App P. 1(a)(2). ↑
127. See State Eng’r v. City of Golden, 69 P.3d 1027, 1028 (Colo. 2003); State Eng’r v. Eagle River Water & Sanitation Dist., 69 P.3d 1028, 1029 (Colo. 2003) (Chief Justice Mullarkey, Justice Martinez, and Justice Bender affirmed, Justice Kourlis, Justice Rice, and Justice Coats reversed, and Justice Hobbs did not participate); see also Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 591 (Colo. 2005). ↑
128. See Colo. Water Conservation Bd., 109 P.3d at 591; City of Golden, 69 P.3d at 1028. ↑
129. S.B. 216, 63rd Gen. Assemb., Reg. Sess. (Colo. 2001) (“Senate Bill 216” or “SB 216”) (codified at Colo. Rev. Stat. §§ 37-92-102(5), (6), 37-92-103(4), (7), (10.3), 37-92-305(13)–(16)). ↑
130. Porzak et al., supra note 117, at 214. ↑
131. Senate Bill 26 defines a “Recreational in-channel diversion” as “the minimum amount of stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district for a reasonable recreation experience in and on the water.” Colo. Rev. Stat. § 37-92-103(10.3). ↑
132. Porzak et al., supra note 117, at 210. ↑
133. See Colo. Rev. Stat. § 37-92-103(4). ↑
134. See generally Porzak, supra note 117, at 209 (discussing the applications of Golden, Breckenridge, Vail, Steamboat Springs, Salida, and Buena Vista). ↑
135. Colo. Parks & Wildlife, The 2019 Statewide Comprehensive Outdoor Recreation Plan (SCORP) 29 (2019), https://cpw.state.co.us/Documents/Trails/SCORP/ Final-Plan/2019-SCORP-Report.pdf. ↑
136. Heather Sackett, Groups try again to secure water for recreation, Aspen Journalism (Feb. 19, 2022), https://aspenjournalism.org/groups-try-again-to-secure-water-for-recreation/. ↑
137. White House Council on Env’t Quality et al., Opportunities for Accelerating Nature-Based Solutions: A Roadmap for Climate Progress, Thriving Nature, Equity, and Prosperity 6 (Nov. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/11/Nature-Based-Solutions-Roadmap.pdf. ↑
138. For example, the Colorado Water Conservation Board provides Water Plan Grants for projects that “promote watershed health.” The grant guidelines state: “Project types may include stream channel and floodplain restoration, habitat development for aquatic and terrestrial species, revegetation of riparian areas & invasive species removal.” Water Plan Grant Program: Grant Guidelines, Colo. Water Conservation Bd. (May 17, 2022), https://dnrweblink.state.co.us/CWCB/0/edoc/220214/WaterPlanGrantCriteria GuidelinesFeb2023Update.pdf. ↑
139. Corday LTPBR Report, supra note 36, at 9. ↑
140. Infrastructure, Bureau Land Mgmt., https://www.blm.gov/about/laws-and-regulations/infrastructure (last visited May 20, 2024). BLM explains on this webpage the importance of both the BIL and IRA funding to help scale up restoration work to improve resilience to fire and drought. Id. ↑
141. A. Park Williams et al., Large contribution from anthropogenic warming to an emerging North American megadrought, 368 Sci. 314, 314 (2020). ↑
142. S.B. 23-270, ch. 384, 2023 Colo. Sess. Laws 2304 (codified at Colo. Rev. Stat. § 37-92-602(9)). ↑
143. Id. at 2305. ↑
144. Colo. Rev. Stat. § 37-92-602(9)(b)(I). ↑
145. Id. ↑
146. Colo. Rev. Stat. § 37-92-602(9)(e)(I). ↑
147. Id. § 37-92-602(9)(b)(I)(A). SB270 created a new requirement that all restoration work in perennial streams that does not fit under either the post-fire mitigation or the “mechanical grading” exemptions, must design the project to stay within the Ordinary High Water Mark (“OHWM”). This is a new criterion under the law that previously was not how process-based restoration projects were designed as typically many projects are working to reconnect a degraded incised stream with its former floodplain. ↑
148. The Voluntary Flow Management Program on the Upper Arkansas River, Ark. River Basin PEPO Workgroup, https://cpw.state.co.us/placestogo/parks/ArkansasHeadwatersRecreationArea/Documents/Admin/Publications/VFMPInformationalBrochure.pdf (last visited May 10, 2024). ↑
149. Id. ↑
150. Id. ↑
151. Id. ↑
152. Heather Sackett, Shoshone agreement keeps water flowing down Colorado River through Glenwood Canyon, Aspen Post-Independent (Apr. 7, 2020), https://www. postindependent.com/news/local/shoshone-agreement-keeps-water-flowing-down-colorado-river-through-glenwood-canyon/. ↑
153. Shoshone Outage Protocol, Agreement No. 13XX6C0129 (June 27, 2016). ↑
154. Ark. River Basin PEPO Workgroup, supra note 144. ↑
155. As discussed supra, the Arkansas Voluntary Flow Management is voluntary, and the Shoshone Outage Protocol despite providing recreational benefits does not mention recreation. The Shoshone Outage Protocol provides an off-ramp in case of drought; see supra note 149. ↑
156. Practitioners have many tools available to determine the historic footprint or extent of the river corridor, and given current conditions (flows, nearby infrastructure and other land uses, among other factors), consider what the restoration potential is within the historic footprint. Examples include historic aerial photos often available back to the 1930s, USGS topographic maps, USGS and other agency LiDAR data, reference reaches, and Colorado Natural Heritage Program’s Watershed Planning Toolbox mapping tools for current and historic riverine wetlands. Watershed Planning Toolbox, Colo. Wetland Info. Ctr., https://cnhp.colostate.edu/cwic/tools/toolbox/ (last visited May 10, 2024); Co-author Corday conversations with Julie Ash, Senior Restoration Engineer, Stillwater Sciences, and other river restoration practitioners in 2023. The timeframe for “historic footprint or extent” is generally within the past 200 years when trappers and then miners and settlers arrived in Colorado and began changing streams in many ways. Gertrud Haidvogl, Historic Milestones of Human River Uses and Ecological Impacts, 8 Riverine Ecosystem Mgmt. 19 (2018). ↑
157. Colo. Rev. Stat. § 37-92-103(7). ↑
158. Colo. Rev. Stat. § 37-87-102(b). ↑
159. Colo. Rev. Stat. § 37-92-103(11). ↑
160. See, e.g., Colo. Ground Water Comm’n v. North Kiowa-Bijou Groundwater Management Dist., 77 P.3d 62, 69–70 n.8 (Colo. 2003) (“Tributary ground water or underground water is defined by subsection 37–92–103(11) as ‘the waters of a natural stream . . . in the unconsolidated alluvial aquifer of sand, gravel, and other sedimentary materials and all other waters hydraulically connected thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or natural stream’”); Simpson v. Bijou Irrigation Co., 69 P.3d 50, 59 n.7 (Colo. 2003). ↑
161. Ellen Wohl et al., supra note 85, at 2. ↑
162. See Colo. Rev. Stat. § 37–92–103(7). In addition, PBR restoration activities could not be considered “in-channel” diversion structures because such structures are limited to Recreational In–Channel Diversions. Id. § 37-92-103(10.3). ↑
163. Colo. Rev. Stat. § 37-92-103(10.8). ↑
164. See Corday LTPBR Report, supra note 36, at 30–32. ↑
165. Id. at 29–33. ↑
166. Id. at 29. ↑
167. Id. at 66–67. ↑
168. Id. at 33 (citing Michael M. Pollock et al., The Beaver Restoration Guidebook Version 2.01, U.S. Fish & Wildlife Serv. 7 (2018), https://www.govlink.org/watersheds/7/pdf/Pollock_2018_BRG_v2.01.pdf; see also Annegret Larsen et al., Dam builders and their works: Beaver influences on the structure and function of river corridor hydrology, geomorphology, biogeochemistry and ecosystems, 218 Earth-Science Reviews (July 2021). ↑
169. See Corday LTPBR Report, supra note 36, at 32. Corday’s search found only one study that tries to directly answer this question, which was conducted by Andrew Bobst, Sr. Hydrologic Engineer for Montana Bureau of Mines, as part of his Montana State University PhD research. For his 2016–2020 study of a SW Montana BDA project on Alkali Creek, he monitored for hydrologic changes and determined that by year three post-project the riparian vegetation had increased by about 25 percent, which resulted in a 0.7 gpm increase in ET per BDA. This small amount of decreased flow (0.0015cfs) calculated by Bobst was well below an amount that could be detected by a stream gage. Andrew Bobst, Sr. Hydrologist for Montana Bureau of Mines, PowerPoint presentation to the Riverscape Restoration Network in August 2020. Bobst has been working to prepare his research for publication. ↑
170. See Corday LTPBR Report, supra note 36, at 32. ↑
171. See id at 67. ↑
172. See id at 67–69. ↑
173. Id. at 67. ↑
174. S.B. 23-270, ch. 384, 2023 Colo. Sess. Laws 2304, 2306 (codified at Colo. Rev. Stat. § 37-92-602(9)). ↑
175. Several of the authors participated in the discussions regarding the drafting of Senate Bill 270; this assertion is based upon their review of early distributed but unpublished bill drafts. ↑
176. Ellen Wohl et al., supra note 85, at 2. ↑
177. See discussion of the “historical footprint” test supra note 76. ↑
178. See generally Ellen Wohl et al., supra note 24, at 5974–97, for the history of stream restoration. Our assertion regarding Colorado’s approach is based on the experience of the authors; specifically, the historical footprint test has been utilized by DWR at least since Mr. Cyran began his tenure at the Colorado Attorney General’s Office in April, 1993 and long before Ms. Corday’s tenure at Colorado Parks and Wildlife from 2013-2019. ↑
179. See Corday LTPBR Report, supra note 36, at 67–69. ↑
180. See Fluvial Hazard Zone Mapping Applications and Studies, Colo. Fluvial Hazard Zone, https://www.coloradofhz.com/about (last visited Feb. 2, 2024). ↑
181. At this point in time, based upon numerous conversations with restoration stakeholders across the state, it is likely that the majority of restoration projects will be designed to fit within SB270 in order to take advantage of the exemption from having to obtain an augmentation plan. However, what we have suggested, provides a reasonable pathway for allowing projects that don’t fit within SB270 while protecting downstream water rights. It is hard to guestimate the additional workload for DWR this type of review would equate to, but given the average number of restoration projects across Colorado in any given year, likely less than a dozen additional practices. ↑
182. Supra note 76. (DWR’s 2017 letter stated “As currently proposed, the project does not appear to require any new water rights to operate. However, the applicant should be aware that our position does not prevent a claim of injury by a water user against the applicant.”) ↑
183. S.B. 23-270, ch. 384, 2023 Colo. Sess. Laws 2304, 2305. ↑
184. Colo. Rev. Stat. § 37-80-102. Information available on the Colorado Division of Water Resources Website at https://dwr.colorado.gov/. ↑
185. See supra Section I.B. ↑
186. See supra notes 176–177. ↑
187. Cooperative Measures Toolbox, Upper Colo. River Wild & Scenic Alt. Mgmt. Plan (Oct. 29, 2020), https://www.upcowildandscenic.com/uploads/1/3/5/3/135388668/ cooperative_measures_toolbox_final.pdf. ↑
188. Don Anderson, Characterization of West-Slope CWCB Instream Flow Rights Downstream from Bureau of Reclamation Water Supply Projects, Western Resource Advocates (2023). ↑
189. Colo. Water Conservation Bd., Basin Implementation Plan Draft Guidance 1, 3, https://dnrweblink.state.co.us/cwcb/0/doc/172522/Electronic.aspx? searchid=da8f2c6c-3efa-48d6-a43e-892b5c2bd750 (last visited Feb. 11, 2024). ↑
190. See Arkansas Base Implementation Plan (2022), Colorado Implementation Plan (2022), Gunnison Base Implementation Plan (2022), North Platte Base Implementation Plan (2022), Rio Grande Base Implementation Plan 2022), South Platte Base Implementation Plan (2022), Southwest Base Implementation Plan (2022), and Yampa-White-Green Basin Implementation Plan (2022), https://engagecwcb.org/basin-implementation-plans. ↑
191. This assertion is based on the experience of one of the authors of the article, Hattie Johnson, who participates on the Aspinall Working Group. ↑
192. Colorado Division of Water Resources, Colorado’s Water Priority System and DWR’s Water Commissioner’s Role, YouTube (July 6, 2023), https://www. youtube.com/watch?v=yGYqa3_oTPw. ↑
193. Colo. Div. of Water Res., General Administration Guidelines for Reservoirs 13 (Oct. 2011), https://dnrweblink.state.co.us/dwr/DocView.aspx?id= 3579805&dbid=0&cr=1. ↑