Landmark Legal Decision Protects Rivers and Instream Flows — Western Resource Advocates

From Western Resource Advocates (Rob Harris/Joan Clayburgh):

Today the Colorado Supreme Court rendered a landmark decision upholding the “instream” water right for the breathtaking San Miguel River.

The court deemed that a senior water rights holder, Farmers Water Development Company, is unaffected by the State of Colorado’s instream water rights on the San Miguel river and affirms that state water rights are a legitimate and essential tool to protect Colorado’s fish and wildlife.

“We’re ecstatic that the Colorado Supreme Court upheld permanent protection for this scenic river in Colorado’s Red Rock Canyon country,” said Rob Harris, Staff Attorney at Western Resource Advocates (WRA) and WRA’s lead defender before the Supreme Court. “Healthy rivers are important for wildlife and recreation. This case will long be remembered for preserving healthy rivers throughout Colorado as a legacy for future generations. Fishermen, boaters, and wildlife need these sorts of instream water right protections secure water for their needs.”

In 2013, the Water Court in Montrose ruled in favor of the Colorado Water Conservation Board’s application for “instream flow” protection that permanently safeguards water flowing in the San Miguel River for fish. This will also benefit recreational users. The San Miguel River is one of the last relatively free-flowing rivers in Colorado. The Water Court approved an instream flow protection of up to 325 cubic feet per second, enough to support the vulnerable native fish in the San Miguel.

Farmers Water Development Company challenged this decision, claiming their water right would be negatively impacted, which today the Supreme Court found to be incorrect.

“We are proud of the part we’ve played legally defending this instream flow water right,” said Rob Harris. “We believe this ruling not only protects the distinctive San Miguel, but ensures we have a vital tool to leave a legacy of healthy rivers throughout Colorado. We thank the Colorado Water Conservation Board, Colorado Parks and Wildlife, the Bureau of Land Management and our tireless partners in the conservation community who helped make today’s victory possible.”

The San Miguel River is unique, rising in the San Juan Mountains southeast of Telluride and flowing through San Miguel and Norwood canyons, then past Placerville and Nucla – joining the Dolores River in Montrose County. This river is renowned for exciting whitewater boating and tremendous trout fishing.

This visually stunning river flows through Colorado’s red sandstone canyon country and is also home to three native fish that are struggling to survive.

Without dedicated instream flows in the San Miguel and elsewhere, these fish could require protective action under the federal Endangered Species Act. Colorado’s Instream Flow Program allows for a fair, collaborative process where local stakeholders have a voice in protecting Colorado’s rivers and streams, and the San Miguel water rights reflect that approach.

Instream water rights help keep water in a river or lake. The rights dedicate minimum water flows between specific points to preserve or improve the natural environment. These can be used to protect fisheries, waterfowl, frogs/salamanders, unique geologic or hydrologic features and habitat for threatened or endangered fish. The rights can be monitored and enforced, thereby insuring long-term protections.

The legal challenge by Farmers Water Development Company would have threatened the continued vitality of Colorado’s Instream Flow Program, and today’s decision allows all current and future in- stream flow protection efforts to continue.

More San Miguel watershed coverage here and here.

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