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Colorado's Instream Flow Battle

Court battle over instream rights creates ripples

By
Jerd Smith - article published 11/29/05 in the Rocky Mountain News.

In a victory for environmentalists, the Colorado Supreme Court gave a boost Monday to a state program designed to make sure streams always flow at certain levels.

The case, involving changes to Central City's water system, pitted the gambling town against the Colorado Water Conservation Board, which runs a program designed to help keep water in streams for the benefit of the environment.

Monday, the court ruled that Central City would have to make sure its diversions on North Clear Creek in Gilpin County don't infringe upon instream water rights controlled by the state.

Central City had argued that it didn't have to tailor its diversions to protect state water rights in the same stream. But the court said the state's instream flow rights deserve the same level of protection that other holders of water rights receive under the law.

Keeping water in streams for the environment - rather than diverting it and putting it to use - is difficult in Colorado because if water isn't diverted or captured in a reservoir, it eventually flows out of the state.


Critics of the instream flow program argue that such a practice is wasteful and is a poor use of a scarce resource. Environmentalists and recreational users disagree, and have fought for decades to protect water for instream use.

The Central City case drew the attention of cities across the state, including Denver, Westminster and Arvada. Cities traditionally have been wary of minimum stream flows because they fear the rules limit their ability to manage their own supplies.

"For the water-dependent environment, it's a very important decision. I'm ecstatic," said Linda Bassi, a staffer with the state's instream flow program.

Central City attorney Stephen Williamson could not be reached for comment. But Rick Fendel, a water attorney for Gilpin County, which backed Central City in the case, said the ruling is another sign that competition for water between people and the environment is only going to grow more intense.

"North Clear Creek is not a big stream. Essentially, (Central City and the state) were competing for the same supply," Fendel said.

Environmental groups lauded the Supreme Court ruling.


"It's obviously a big win for the instream flow program," said Drew Peternell, a staff attorney for Trout Unlimited.
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