Colorado recently strengthened its instream flow program with the passage of House Bill 20-1037. Colorado’s instream flow program began in 1973 when the General Assembly authorized the Colorado Water Conservation Board (CWCB) to appropriate “instream flows” – defined as such minimum flows on a natural stream as are required to preserve the natural environment to a reasonable degree. Because the program began in 1973, many of the CWCB’s instream flow rights have relatively junior stream priorities.
HB 20-1037 provides a process for the CWCB to decree a plan to augment stream flows using water rights that have previously been decreed for augmentation use. For example, water right owners who change the use of their water rights to augmentation are sometimes left with “excess consumptive use credits” – credits that exceed what is needed under the owner’s plan for augmentation. Under HB 20-1037, those excess consumptive use credits, which are already decreed for augmentation use, may be included in a new application by the CWCB for a plan to augment stream flows. The rate of flow for such augmented stream flows is not limited to what is needed to preserve the natural environment, but instead may be at rates the CWCB determines are appropriate to preserve or improve the natural environment to a reasonable degree.
For more information about HB 20-1037 or water law generally, please contact Nicole Garrimone-Campagna (970-947-1936 x811 or ncampagna@garfieldhecht.com) or Mary Elizabeth Geiger (970-947-1936 or megeiger@garfieldhecht.com).
