STEAMBOAT SPRINGS • The Colorado legislature’s interim water resources review committee, a bipartisan group of 10 lawmakers, began its summer work by relaunching efforts to change the state’s instream flow program.

During the 2019 session the committee sponsored two bills that would have made some fairly big changes to the state’s instream flow (ISF) program, though neither bill made it out of Senate committee.

The instream flow program dates back to the 1970s and is controlled by the Colorado Water Conservation Board (CWCB).

Instream flow is the water that flows through a stream, river or creek. Programs that manage instream flows do so in order to protect fish habitats and for recreational purposes.

Colorado’s instream flow program, according to CWCB’s Linda Bassi, is intended to “preserve the natural environment to a reasonable degree.”

As the years have gone on, the CWCB has also received permission to improve instream flows within the program.

Bassi explained to the interim water committee at Wednesday’s session, held during the Colorado Water Congress summer conference in Steamboat Springs, that the program was established in 1973 to allow state control over Colorado water and under Colorado’s water rights and prior appropriation system. The original legislation was also intended to block ballot measures (one was already in the works) that would have allowed for private instream flow programs.

Over the years, the CWCB has acquired water rights, often donated, to protect streams, now to the tune of 756 stream miles, Bassi explained, and for 1700 stream segments around the state.

Some of those water rights are new ones, others are existing and donated, although that doesn’t happen very often, she added.

One of the program’s provisions allows for for temporary water “loans” for three years out of a 10-year period; they can be used on any segment of a stream already decreed as part of the instream flow program. It’s a one-and-done situation; once the three years are up, that water cannot be diverted into the stream by the water provider, nor can the contract be renewed. Bassi told lawmakers only eight temporary leases have been developed since 2012.

It’s not as complicated as it sounds.

The city of Steamboat Springs made an arrangement for a temporary water loan from the Upper Yampa River Conservancy District, which allowed the city to tap Upper Yampa water held in Stagecoach Reservoir and which helped preserve water in the Yampa near Steamboat for recreational users, aquatic life and agricultural water users.

In the 2002 drought, for example, the Yampa River flow slowed to 17 cubic feet per second (CFS), when in most years it’s at least 100 CFS, according to Kelly Romero-Heaney, the city’s manager for water resources. The agreement with the Upper Yampa district bolstered flows in the Yampa, she said, as well as kept the river’s temperature stable.

But the three-in-10-years limitation became a problem. It didn’t take long for those three years to be used up, which happened shortly after the 2012 drought. Once the city had exhausted its three years, it had no other way to preserve the flows in the Yampa. That led to the portion of the river that flows through Steamboat being placed on the EPA’s “impaired water body list,” a designation tied to increased water temperatures on the river.

Some communities have had to come up with cooling technologies for their rivers, she explained, and that’s not only expensive but energy intensive, especially for those communities that are also trying to reduce their greenhouse gas emissions.

“There aren’t any other opportunities” for Steamboat to find more water for its instream flow program, Kelly Romero-Heaney told lawmakers Wednesday.

One of the 2019 bills would have expanded that temporary loan program from three-in-10-years to five-in-10-years, to allow those agreements to be renewed after 10 years.

The measure is likely to make a return trip to the legislature in 2020.

Carlyle Currier of Colorado Farm Bureau said the system works well to protect farmers who irrigate from loss of their water rights. However, he’s leery of changes to the program without an examination of unintended consequences.

The temporary loan, a result in changes in water rights, has to be approved by the state’s water courts, which protects water rights for both senior and junior rights holders. A senior water right holder is one who has claimed the water right first; everyone else on that same body of water is “junior” to that right. When there isn’t enough water, the senior water rights holder gets what they need and the junior holder gets whatever is left.

“We don’t want to throw away the protection of water courts for junior water rights,” he said.

Another issue around the ISF program is in how much time people have to respond when an instream flow program is being proposed. Currently, water rights holders have 15 days to respond, which former state Rep. Kathleen Curry of Gunnison said may not be enough time.

Among the proposed changes that could form legislation in 2020: allowing the ISF program to improve as well as preserve flows, suggested by Drew Peternell of Trout Unlimited. He also suggested that the temporary lease program be allowed on portions of streams that are not already part of an ISF decree, although he said he knew that might be a sticky problem for some.

Aaron Citron of the Nature Conservancy suggested a longer timeline for notification to those who could be impacted by an ISF decree. Fifteen days might be okay for an emergency, but a longer comment and review period could be allowed for renewals, for example, he said.

“We’re in a better place” on this issue than a year ago, said state Sen. Kerry Donovan of Vail, the committee’s co-chair, although she added the committee also needs to look at unintended consequences, such as impacts on return flows.

A return flow is the water that returns to a stream or ditch after it’s been used to irrigate farmland. Jim Yahn, manager of the North Sterling Irrigation District, noted that during the summer, almost all of their irrigation water comes from return flows. That could be impacted by diversions to preserve or even improve instream flows on a river or stream.

And the few temporary leases granted in the last six years are not enough to make major changes that could have a greater impact in rural areas, according to Ken Curtis of the Dolores Water Conservancy District.

“I”m not sure these changes are the right fit for the whole state,” he said.