“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

Denver, Colorado        April 10, 2015

The Hobbs Opinion

There is a formula to writing legal opinions, and a truly gifted legal writer like Justice Hobbs can take the formula and make it his own. That was the final panel’s theme at the 2015 University of Denver Water Law Symposium honoring Justice Gregory J. Hobbs, Jr. of the Colorado Supreme Court (“Court”). The panel comprised several of Justice Hobbs’s former colleagues: retired Chief Justice Michael Bender, retired Justice Jean Dubofsky, and retired Justice Alex Martinez.

The panel moderator was retired Justice Dubofsky, who was appointed to the Court in 1979. Justice Dubofsky provided symposium attendees with a history of the judicial opinion and how it has evolved in Colorado over the decades. At the time she was appointed, justices were expected to write on the issues and areas they specialized in. Justice Jim Groves, for example, was the water expert on the Court at the time, and anytime the Court decided a water issue he would write the opinion. Justice Dubofsky had a passion for constitutional cases and would write those opinions.

Justice Dubofsky shared that, at that time, each justice on the Court was expected to write at least 100 opinions per year. Currently, the average justice writes 32 opinions per year. Because the justices wrote so many opinions, they were often kept short and simple. As the number of appellate divisions and avenues for direct review grew, the Court was required to take fewer cases on certiorari and the method of opinion writing changed. The justices were able to spend more time writing their own opinions and editing the work of their colleagues, and the Court moved away from having justices specialize in particular topics. Over time, the process and formula of opinion writing evolved into its present state—focused both on substance and creativity. Justice Dubofsky closed out her portion of the panel by stating: “If you like solving problems, it is one of the worlds most rewarding jobs. Greg Hobbs has done it very well.”

Retired Chief Justice Michael Bender was the next speaker; he and Justice Hobbs sat on the bench together for 17 years. He began by remarking that Justice Hobbs’s enormous energy, love for people and history, and desire to be a spiritual leader for the law helped him shape Colorado water law and foundational principles in a variety of other legal fields.

In one of Chief Justice Bender’s favorite cases, Justice Hobbs authored an opinion about whether a tent should be considered “habitation” for purposes of the Fourth Amendment. In People v. Schafer, Justice Hobbs’s knack for history is apparent and applied in an eloquent version of the legal writing formula. Justice Hobbs cited, amongst other historical sources, the expeditions of Lewis and Clark to build his argument that a tent is in fact a constitutionally protected form of habitation. Chief Justice Bender next spoke about a case where the Court decided whether a bible constituted an improper outside influence during jury deliberations. Justice Bender remarked that the writing in this opinion is so clear, and the reasoning so convincing, that the opinion has been cited in other jurisdictions to overturn death sentences where the jury improperly consulted the bible during jury deliberations.

Chief Justice Bender ended his portion of the panel by explaining that he chose to talk about these cases because they highlighted notable times where Justice Hobbs’s writing has been influential outside of water law. While water law is incredibly lucky to have him, he is an advocate for all in the state of Colorado, and has had an influential career in many areas of the law.

From the basic premise of a person grounded in morality, you see this great man with concerns for history and humanity, a man with enthusiasm that uses innovative thinking to solve problems, a man that shows respect for all those he meets. Those were the opening remarks from Justice Martinez, the final panel speaker. He commented on Justice Hobbs’s vast knowledge and extensive experiences, his hard work, his enthusiasm for people, and his approachableness. Justice Martinez stated that because of all of these attributes, Justice Hobbs has been a role model for the many, and that these attributes shine through in the opinions he has authored.

Justice Martinez thinks that, while opinions do need to follow a certain formula, strictly following that formula can be dull. Justice Hobbs’s love of history and the state of Colorado is apparent in his writing and makes his opinions in every area of law interesting to read. Justice Martinez said that if he was ever assigned an opinion on a topic he was not very familiar with, he would read a few of Justice Hobbs’s opinions in order to educate himself on the issue. Justice Martinez remarked that one of Justice Hobbs’s great gifts, is that he not only knows the law, but he communicates it in a way that makes it easy for people to understand and learn from.

Justice Martinez spoke about a unique case the Court decided, Archuleta v. Gomez, which dealt with the adverse possession of water rights. Justice Hobbs was careful to communicate that adverse possession has a limited role in water law, and that you cannot adversely possess water in the stream; it only applies to water that has passed the head gate and has been diverted from the stream. More importantly though, Justice Martinez wanted to focus on the poetic nature of a line in the opinion: “The Colorado doctrine of water use is propelled by need and bounded by scarcity.” Justice Martinez remarked in the fact that the one sentence poetically embodied so much of Colorado, and Justice Hobbs fit it artistically into the formula.

Gregory J. Hobbs, Jr. gave the final remarks, and began by taking a moment to acknowledge his law clerks and interns over the years. He stated that he believes the more minds that are wresting with the written product, the better the result. He concluded by expressing gratitude for a career has been filled with scholarship, and that was shaped by negotiation and different ideas.


“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

 Denver, Colorado        April 10, 2015

Access to Justice & Tribal Water Rights

Professor Lucy Marsh, a professor dedicated to pro bono work for elderly and low-income tribal clients at the University of Denver Sturm College of Law, was the moderator for the opening panel at the University of Denver Water Law Review’s eighth Annual Symposium. Professor Marsh introduced three wonderful speakers: Retired Justice Patricio Serna, Chairman of the U.S. Indian Law and Order Commission Troy Eid, and Professor Sarah Krakoff. All three panelists spoke on a topic that is dear to Professor Marsh’s and Justice Gregory Hobbs’ hearts – the rights of Native Americans and Justice Hobbs’ enduring contributions to those rights.

Retired Justice Serna is an honored Justice of the New Mexico Supreme Court, where he served for fifteen years. He was a District Court Judge eleven years before that. Justice Serna is still active as Emeritus on the Board of Directors for the National Consortium on Racial and Ethnic Fairness in the Courts. Justice Serna began the panel speaking on how important the past is to Navajo people and how he was awarded by a group of Navajo with his own bolo tie. The bolo tie is a trademark of Justice Hobbs, who is rarely seen without one. According to Justice Serna, the bolo tie represents for Navajo people their philosophy that people are to be “in harmony with nature.”

Justice Serna spoke of the New Mexico tribal state judicial consortium. He explained that the consortium is composed of individuals who are appointed by the New Mexico Supreme Court to represent the twenty-three tribes and pueblos that are recognized as residing in New Mexico. Justice Serna spoke on how the consortium was put into place to facilitate communications between the courts and the tribes. The consortium succeeded by creating tribal courts with their own tribal judges. Further, he explained that the tribal judges are given authority by the state to make rulings, and that these courts are unique in that each tribal judge sits in tandem with a state judge. Justice Serna then spoke of his personal experiences with the tribal courts, his appreciation for the tribal court judges, and the effective work he has done to improve the livelihood of tribal members.

Next, Justice Serna shared an Indian water law case that has been ongoing since 1966, New Mexico ex rel. State Engineer v. Aamodt. The case was filed in 1966 in the United States District Court. It is the longest running water law dispute in New Mexico. The case is adjudicating the water rights in the Rio Pojoaque System of both Pueblo and non-Pueblo peoples of New Mexico. The Pueblo includes the Nambe, Pojoaque, Tesuque, and San Ildefonso. Further proceedings in the case were stayed in August of 2000. The parties still have not reached a settlement agreement and the case remains open today. Justice Serna concluded his presentation by reading an original poem by Justice Hobbs, “An Oath as Good as Fry Bread.”

Troy Eid presented next. Eid is a principle shareholder in the Denver office of the law firm of Greenberg Traurig. He also teaches as an adjunct professor at both the University of Denver Sturm College of Law and the University of Colorado School of Law. He has worked as a U.S. Attorney for the District of Colorado and is recognized for his passion for improving the lives of Native Americans. Eid gave a glimpse into Justice Hobbs’ life before being a Colorado Supreme Court Justice. Justice Hobbs was once a boy scout. He excelled at that, as he has many things in his life, exemplified by his being awarded the Eagle Badge. Justice Hobbs also served in the Peace Corps with his wife Bobbie.

Eid also shared that Justice Hobbs revolutionized water law here in the West through his work in the judiciary. The role of reclamation, as a principle of water management, has changed over the years. During its change, Justice Hobbs has helped people understand, steering the wave by issuing educational decisions on water law throughout his career as a justice. Justice Hobbs’ reputation only grew when he became the focal point in a 2009 primary. In that primary, Congressman McGinnis was accused of plagiarizing an article written by Justice Hobbs. This incident was, according to Eid, Justice Hobbs’ love for “water, personified in the state.”

Eid, like Justice Serna, also had stories to share of times when Justice Hobbs served the Native American community. Justice Hobbs, together with Mike Welsh, obtained a two million dollar grant to set up a workshop for Navajo teachers on tribal sovereignty. The goal of the program was to equip the Navajo teachers with the skills to develop a curriculum and to share their own history with others. Eid concluded his speech by commending Justice Hobbs for his involvement in educating the public of the importance behind Governor Hickenlooper’s formal apology to the Cheyenne and Arapahoe tribes for the Sand Creek Massacre. The massacre occurred on November 29, 1864, when Colorado Territorial militia slaughtered between two hundred and four hundred tribal people. Those murdered were mostly women, children, and elders. It was not until December 3, 2014, that Governor Hickenlooper apologized to the descendants of these tribes, the first formal apology of the massacre from a representative of the State. Justice Hobbs played a large role in making the apology happen. Justice Hobbs gave a speech at the State Capitol that day, and Eid quoted one of the Native American leaders who was present for the ceremony. That leader said of Justice Hobbs, “That judge sure told the truth.”

The panel concluded with a presentation by Professor Sarah Krakoff of the University of Colorado School of Law. She is well renowned in the areas of American Indian law and natural resources law. Krakoff started the American Indian Law Clinic at University of Colorado School of Law, and before that she lived on the Navajo Nation for three years while working for DNA People’s Legal Services. Today, Krakoff regularly takes students to work with traditional farmers in the San Luis Valley. Krakoff and the law students who accompany her work pro bono for low-income farmers engaged in traditional irrigation techniques called “acequias.” Connecting this work to Justice Hobbs’ ultimate respect for indigenous traditions, even when they are contrary to the western doctrine of water law, she presented her work on “The Acequia Project” as “a Hobbsian Trifecta.”

The Acequia Project is a trifecta of three values that are dear to Justice Hobbs: access to justice, scholarship and scholarly writing, and western water law. Krakoff commended Justice Hobbs for all the work and contributions he has made, as an attorney and as a judge, in the realm of water law. Krakoff explained how the Acequia Project benefits the land and farmers of Costilla County, Colorado. The farmers in Costilla County are descendants of original Spaniard settlers.

Next, Krakoff provided some light on why her work is termed the Acequia Project. She explained that acequias are used in irrigation. The water is diverted in a canal from the main source of water, with smaller ditches running off of the canal to provide water to the fields that if flows by. When water is scarce, which is common, determining how to prioritize the water from the acequia for irrigating is handled by each family. This method of irrigating, and equitable division of water distribution, is counter to Colorado’s current water law that recognizes first in time, first in right. Colorado has chosen to recognize acequias as a form of irrigation and assisted these farmers by passing Colorado Revised Statute section 7-42-101.5. This legislation gives the farmers in the valley the right of first refusal, a right given to owners of conventional ditches.

After providing all this background, Krakoff spoke of the other parts of the trifecta. A couple of the students on the Acequia Project have done extensive research and drafted an acequia handbook. There is also a scholarship in place for those participating in the program. The majority of the work done has been by the students of the project, along with collaborators.

Krakoff ended her presentation of the Hobbsian Trifecta with a fourth commitment of Justice Hobbs, one that all of the speakers recognized—his poetry. Krakoff delivered a brief five-line poem, known as a cinquain, she wrote herself in honor of Justice Hobbs. The poem ended by honoring Justice Hobbs as “one of Colorado’s sages.”

The final part of the presentation was a question and answer session. Professor Marsh asked Justice Hobbs to explain the case of Archuleta v. Gomez, a case the Colorado Supreme Court decided in 2012. Having written the opinion, Justice Hobbs explained how the Court determined that a beneficially used water right was subject to adverse possession.


“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

Denver, Colorado        April 10, 2015

Keynote Address

The 2015 University of Denver Water Law Review Annual Symposium was a celebration and commemoration of Justice Gregory J. Hobbs, Jr.’s contributions to Colorado water law, in light of his coming retirement. The event began with a welcome by Sturm College of Law’s Dean Marty Katz, followed by an opening presentation from Justice Allison Eid and Chief Justice Nancy Rice of the Colorado Supreme Court.

Justice Eid began by sharing how the idea for the symposium stemmed from her sadness that one of her closest friends, her “bench mate,” would be leaving the Court. The symposium was a way to memorialize Justice Hobbs’s contributions to the Colorado Supreme Court and the whole state of Colorado in a permanent, thoughtful way.

Justice Eid then recited Charles Wilkinson’s charge: “We need to develop an ethic of place. It is premised on a sense of place, the recognition that our species thrives on the subtle, intangible, but soul-deep mix of landscape, smells, sounds, history, neighbors and friends that constitute a place, a homeland.” To Justice Eid, this quote aptly captured Justice Hobbs’s life’s work. It was Wilkinson’s “ethic of place” that drew Justice Hobbs to water law in the first place. And as the “Great Water Justice,” his love of Colorado’s landscapes, history, and communities manifested throughout his numerous water court opinions.

Following this introduction, Justice Eid shared some stories exemplifying Justice Hobbs’s commitment to land and water. She described his famous tours of the Colorado Supreme Court, which always begin with a detailed presentation of his prized map collection—a collection he has now generously donated to the Court. She described attending a water conference in Eugene, Oregon where Justice Hobbs seemed to risk life and limb just to climb out on the precipice of a dam they were touring.

Justice Eid shared how Justice Hobbs’s ethic of place includes not only a passion for both the land and water in Colorado, but also for the state’s rich history. She spoke of Justice Hobbs’s passion for history, and his knack for writing opinions that gave the reader a true sense of the history and value of the location in question. To Justice Hobbs, context was always of critical importance. In all of Justice Hobbs’s work, the deep history of the land and people in question, the profound sense of that place, was the necessary foundation for understanding the questions at hand.

Finally, she described Justice Hobbs’s love of neighbors, friends, and family, and his commitment to a diverse and inclusive community in Colorado. She revealed that the Court’s recognition of law firms committed to pro bono work was Justice Hobbs’s brainchild. She also talked about how Justice Hobbs recently took his grandson on a college tour, and is currently taking a creative writing class with his granddaughter. To Justice Hobbs, the ethic of place is rooted in the land, and integrates a profound appreciation of family and friends.

Justice Eid closed by observing that Justice Hobbs is an accomplished author, traveler, historian, and poet. Although he will be retiring from his position on the bench, he will doubtlessly continue in his other “jobs,” tirelessly committed to history, community, and his ethic of place.

Following Justice Eid, Chief Justice Nancy Rice shared her thoughts and reflections on nearly two decades of working with Justice Hobbs. As Supreme Court Justices, the seven members of the Court spend a great deal of time together, often sitting, talking, and waiting for things to happen. To Chief Justice Rice, Justice Hobbs represents one-seventh of her life, her conversation, and her work; and she will greatly miss his camaraderie and friendship.

Of special importance to Chief Justice Rice is the learning center at the Ralph Carr Judicial Center. She described how a committee, which included Justice Hobbs, met regularly for two years in order to create the center, and she believes that the learning center represents one of Justice Hobbs’s greatest legacies.

The Chief Justice’s final story involved Justice Hobbs convincing the other justices to perform a play in commemoration of the founding father John Adams and his wife Abigail. Justice Hobbs played John Adams, and Chief Justice Rice played Abigail Adams. To the delight of the crowd, Chief Justice Rice brought pieces from her costume to share, and reenacted a particular scene where she threw her bonnet in frustration at John Adams’s failure to give women the right to vote in the U.S. Constitution. The play is one of her favorite memories of her time with Justice Hobbs, a representation of the fun, humor, and intellectual curiosity that he brought to the Court.

Chief Justice Rice finished by thanking Justice Hobbs for his friendship, his many contributions to the Court, and his many contributions to the state of Colorado.


Capital Ideas: Public. Private. Partnerships.

As part of its two-day Annual Convention, the Colorado Water Congress hosted a five-member panel discussing how Colorado businesses and regulatory authorities must recognize and address water scarcity issues as business and economic issues.

The first speaker, Will Sarni, a director at Deloitte Consulting and international leader on sustainability, took a commercial view of water scarcity. Deloitte Consulting is a large economic consulting firm aiding in financial advice, human capital, mergers and acquisitions, and many other areas. Sarni conveyed that water scarcity is current, real, and a serious business risk worth the attention of companies. Energy, water, and food are all interconnected and, as such, companies within these various sectors need to pay close attention to water supply and demand issues. Sarni stressed the need for public and private sector collaboration on the issue, and suggested that more companies should incorporate water risk and water stewardship into their business models.

The second speaker, Mike Brod of the Colorado Water Resources and Power Development Authority (“CWRPDA”), spoke of private and public partnerships as well as future capitalization. The CWRPDA provides low-cost financing to governmental agencies in Colorado for water and wastewater infrastructure development. Brod opined that there is a current need to think about changes in tax laws in order to employ more productive private and public partnerships. Going forward, he remarked that there is also a need for future and continued public capitalization of projects. The current loan capacity is sustained by grants from Congress, and in order to rejuvenate and replenish loan programs, Broad stressed the need for future capitalization.

The third speaker, Reeves Brown from the Colorado Department of Local Affairs (“DOLA”), spoke on DOLA’s work regarding water planning and infrastructure. DOLA’s mission is to strengthen communities and enhance livability through sustainable community development. Access to water is a foundational component of DOLA’s mission, and DOLA provides technical and financial assistance for the design and construction of the public water infrastructure. DOLA is currently incorporating water infrastructure planning into flood and fire recovery efforts. DOLA and the Colorado Water Conservation Board have made grant funds available to establish stakeholder coalitions in ten watersheds devastated by floods and fire. They are also developing watershed master plans that will assess the post-disaster damage and prioritize recovery and restoration.

The fourth speaker, Tim Feehan of the Colorado Water Conservation Board (“CWCB”), spoke of the large capital investment needed to construct a sustainable water structure. Feehan made clear that the CWCB is just one piece of a large puzzle within a complex finance fixture, and that a large financial investment will be needed in order for Colorado to meet its water needs. Remedially, CWCB will set up a state-wide funding committee dedicated towards looking at various interest groups. These interests groups will discuss how to deal with the long-term funding within the state. Feehan mentioned that such solutions might come in the form of private and public partnerships, constructive legislation, public funding, and the maximization of existing grant programs. In closing, Feehan stated that the CWCB is facing problems utilizing existing programs and finding additional funding. There is a need to assist entities that already have funding programs and mix them together to become more efficient.

The last speaker, Doug Robotham of the Nature Conservancy, spoke of how companies and public organizations can use impact investments to generate more funding for water infrastructure. Robotham explained that impact investments are adapted into the work of companies, organizations, and funds with the intention of generating measureable social and environmental impact alongside a financial return. Individuals, foundations, private companies, non-governmental, and governmental organizations can all make impact investments. Potential impact investors will want to know whether an investment in water will be viable. Robotham mentioned four factors that potential impact investors will look for: (i) the water resource must have a definable and measurable value; (ii) the organization must have a demonstrated transactional track record; (iii) a low cost of operations, transactions, and scalability; and (iv) the presence of strong growth drivers and measurable impacts.

Overall, the panel provided a detailed synopsis of how Colorado businesses and regulatory authorities need to continue addressing the business and economic issues of Colorado’s water future.

 

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Opening General Session: Colorado’s Water State of the State

Denver, CO | January 29-30, 2015

How will Colorado provide water to the 2–3 million people moving to the state in the next two decades? Innovation and conservation, said Governor John Hickenlooper and state planners during the opening session of the Colorado Water Congress’s 2015 Annual Convention. The discussion, moderated by Colorado Water Congress President John McClow, included three speakers of different expertise: Governor Hickenlooper, James Eklund, Director of the Colorado Water Conservation Board, and Henry Sobanet, Director of the Office of State Planning and Budgeting (“OSPB”). The panelists discussed the challenges Colorado faces in 2015, how the economic forecast might affect the Governor’s priorities, and the next steps to finalize Colorado’s Water Plan (“Water Plan”).

Gov. Hickenlooper opened the session with a survey of the Water Plan and how it will help Colorado handle its water challenges in the coming years. The Water Plan is the first statewide plan for Colorado’s water. Hickenlooper described the development of the Water Plan as “nothing short of remarkable,” noting the long history of discord among stakeholders over competing interests for water. The Colorado Water Conservation Board developed the first draft of the Water Plan using input from water leaders in each basin across the state. In response to increasing demands for a finite water supply, the Water Plan offers suggestions for conservation and reuse, alternative water transfer methods (as opposed to “buy-and-dry”), and potential agricultural, municipal, and infrastructural projects. Hickenlooper noted that developing the Water Plan was a collaborative effort demonstrating the interdependence of Colorado’s urban and rural areas, from the Western Slope to the Eastern Plains. “When I look at the Colorado Water Plan, I have every reason to be optimistic,” Hickenlooper said.

Hickenlooper emphasized the importance of innovation as encouraged by the Water Plan. Home to one of the top five metropolitan areas in the country for tech startups, Colorado is equipped to prepare for the water challenges ahead, Hickenlooper said. He highlighted one recent innovation in water: IRO, the smart sprinkler by Rachio. Rachio won the Colorado Innovation Network’s “Glorious Failure: In Search of Success Innovation Challenge” with IRO, a sprinkler controller system that adjusts for weather and geography and can be controlled by a smart phone or tablet.

Next to innovation, Hickenlooper emphasized conservation. When asked how Colorado’s declining hydrograph will support its population growth, he said, “We find a way to use a lot less water per person or we don’t have more people coming here. There is no magic.” He acknowledged the rollout of the Water Plan as only the beginning: it is time to access the ideas that have been put on the table and make them better. Hickenlooper presented the first draft of the Water Plan to the public in December 2014, and it remains open for public comment until May 2015.

James Eklund echoed Hickenlooper’s comments on the Water Plan. Eklund emphasized the importance of public feedback on the Water Plan, likening the initial draft to an “open source code” in product development: freely available and open for improvement by anyone. Eklund also acknowledged the current and looming challenges Colorado faces—drought, agricultural “buy-and-dry,” flooding, and climate change—but countered with the promise of the robust Water Plan combined with the collaborative and innovative spirit of Coloradans. Eklund highlighted collaborative efforts already under way, such as the Water, Infrastructure, and Supply Efficiency project (“WISE”) and the Colorado River Cooperative Agreement (“CRCA”). WISE is a partnership between Denver Water and South Metro Water Supply Authority (“South Metro”), allowing Denver Water to sell its excess unused water to entities that are part of South Metro. CRCA is a similar agreement between Denver Water and 42 entities on the Western Slope to benefit water supply, quality and recreation.

Henry Sobanet augmented the discussion on Colorado’s water challenges by explaining Colorado’s current fiscal issues. Sobanet said the current fiscal plan is not working for the taxpayers. Formulas in the plan create negative results for Colorado citizens, particularly in the context of the Taxpayer’s Bill of Rights (“TABOR”). Sobanet explained that two sources of revenue create a TABOR refund: Colorado’s general fund and cash funds. Colorado’s general fund includes revenue from income and sales taxes, while the cash fund includes revenue from fees. When those sources of revenue combined exceed the TABOR limit in a given fiscal year, Coloradans receive a TABOR refund. However, the refund is always drawn from the general fund, regardless of which source of revenue caused the combined total revenue to exceed the TABOR limit. With potential refunds on the horizon, Sobanet emphasized the importance that Coloradans understand how the system works. If a TABOR refund is generated, the refund will come out of the general fund—the fund responsible for Health and Human Services, Public Safety/Courts, K-12 Education, Highway Users Tax Fund, Capital Construction, and Higher Education. Sobanet suggested the fiscal plan would better maximize the taxpayers’ money if it were rewritten to eliminate the formula problem.

As Colorado’s population grows, so does its water and fiscal planning. The Water Plan is the beginning of a long-range effort to meet water supply challenges, but as Governor Hickenlooper said, “water is always in short supply.” Overcoming Colorado’s water challenges requires conservation, cooperation and innovation from water users statewide.

 

The Colorado Water Congress’s logo is featured above. The CWC does not endorse this blog.


Sources:

Colorado River Cooperative Agreement: Path to a Secure Water Future, Colorado River District, http://www.crwcd.org/page_336 (last visited Feb. 16, 2015).

Colorado Water Conservation Board, 2014 Draft Colorado’s Water Plan, Colorado’s Water Plan (Dec. 10, 2014), https://www.colorado.gov/pacific/sites/default/files/2014-Draft-Colorado%27sWaterPlan%28FULL%29.pdf.

Water, Infrastructure and Supply Efficiency: WISE, Denver Water, http://www.denverwater.org/SupplyPlanning/WaterSupplyProjects/WISE/ (last visited Feb. 16, 2015).

 


Historical Perspectives: Does Mitigation Stand the Test of Time

Snowmass, Colorado – August 20-22, 2014

As part of the Colorado Water Congress’s (“CWC”) annual summer conference, Jim Lochhead, CEO and manager of Denver Water, moderated a four panelist discussion entitled “Historical Perspectives: Does Mitigation Stand the Test of Time?”  The discussion centered on Colorado trans-basin water projects and the mitigation of their environmental impacts.  The panelists were chosen to represent differing perspectives, and talk about what they have learned from the past and what has changed in regard to today’s physical and cultural environment.  Jim Lochhead noted that disputes over trans-mountain diversions are not new, and have existed since Coffin v. Left Hand Ditch Co. in the nineteenth century.  He also pointed out that in addition to cities on the front range of Colorado, many western slope cities make use of trans-basin diversions on both large and small scales.

Harold Miskel, formerly the water resource manager of Colorado Springs Utilities, and “Larry Simpson, formerly the general manager of the Northern Colorado Water Conservancy District, presented the perspective from the east slope of Colorado.  During his career, Miskel was involved with the Homestake Water Project; a water supply project jointly operated by the cities of Colorado Springs and Aurora that transfers west slope water from the Eagle River basin to water users on the east slope.  Starting in the early 1960s, and for the rest of his thirty-year career, Miskel took part in the conflicts that resulted from the project, many of which are ongoing today.  He acknowledged that the basin roundtables happening today are beneficial because they create better collaboration.  Although he also stated that in his experience there are three categories of people who get involved in the collaboration process: collaborators, opportunists, and obstructionists.  He noted that obstructionists, those who are willing to defeat you at all costs, can really hinder the progress of a project.

One of the main issues Miskel encountered during his work on the Homestake Project, was the 1041 permitting process.  Miskel discussed how that process was litigated for fifteen years, it is still not completely resolved today, and it caused the costs of the project to go up immensely.  Miskel’s experiences left him with the perspective that the 1041 permitting process needs revising, and he suggested that the new Colorado state water plan presents an opportunity to do just that.  Also, he stated that, while he does believe in the value of mitigation, the current process gives counties decision-making authority in state-wide issues.

Larry Simpson followed by sharing his experiences with the Windy Gap Firming Project. The Windy Gap Project is a water supply project designed to improve the reliability of supply to the Colorado Big Thompson Project, a trans-basin diversion that supplies water to northeastern Colorado from Lake Granby on the eastern side of the continental divide.  Simpson stated that he and Miskel’s experiences were similar. The Windy Gap Project was negotiated extensively with the Colorado River Water Conservation District and the Grand County commissioners, and ended up with large mitigation efforts and compensatory storage as part of the deal.  He gave the opinion that our current permitting and litigation process creates opportunities for stalling, which ultimately causes the costs of a project to increase.  He stated that compensatory storage essentially makes someone pay for something that he/she already owns, and could be considered a form of extortion.  Simpson ended by stating that he believed mitigation would not stand the test of time, because other interests and their successors will keep trying to take another bite out of the apple.

Eric Kuhn, general manager of the Colorado River Water Conservation District, and James Newberry, a Grand County commissioner, gave a perspective from the western slope.  Kuhn noted that the issues surrounding trans-mountain diversions having been going on since the 1930s.  In his view, this is one of the factors making current mitigation negotiations more difficult; in order to be successful in mitigation everyone needs to be included from the beginning.  He also said that the issues are not only trans-basin issues, but also inter-basin issues, and they need to be viewed as a connected system in terms of exports of water.

James Newberry addressed earlier comments about the 1041 permitting process.  He thought the process gave everyone a chance not to be blind-sided. He stated that from the Grand County perspective, the way that the Colorado Big Thompson Project was operated prior to the 1041 permitting negotiations did not do a good job of distributing the affects between all the parties involved.  He said the rivers of Grand County were being negatively impacted, and noted that the Fraser River was recently listed as endangered.  Newberrywas a part of the early negotiations with the Denver Water Board; he credited them for stepping out of their comfort zone, doing the right thing, and looking for solutions.  In Newberry’sopinion, leaders stepped up, created an adaptive management plan, and are now going forward joined at the hip.  He reminded the audience that while it is easy to identify problems, it is not nearly as easy to find solutions.  He drew a laugh from the audience by comparing “Free Tibet” bumper stickers to the Save the Fraser (River) campaign; it is easier to say it than to actually do it.  Newberry reiterated that he thought the 1041 permitting process was beneficial because it identified issues and did not streamline the process.  In his opinion, the process requires people at the grassroots level who understand what the rivers need, in order to help save them.

Lochhead ended the discussions by suggesting that if this experiment in partnering fails, we could end up in a state of gridlock.


Snowmass, Colorado – August 20-22, 2014

Conservation, reuse, and collaboration were prominent themes woven through this summer’s Colorado Water Congress.  From August 20-22, 2014, political leaders and prominent members of the water community traveled to Snowmass Village, Colorado to discuss pressing water issues.  As droughts have plagued the West, this year’s speakers commented on how both the government and citizens are responding to the changing climate.

On Thursday morning, Brown and Caldwell welcomed Melissa Meeker, the Executive Director of WateReuse Association & Research Foundation, to the stage to discuss water sustainability and the importance of reuse in our water supply portfolios. Based out of Alexandria, Virginia, WateReuse is a nonprofit organization that is working to promote sustainable water sources through education, research, and advocacy.  Using California as an example, Meeker noted that there is a chronic imbalance of supply and demand.  In states that have water shortages, balancing water demands with the limited resource poses an ongoing challenge.  Population growth and droughts are driving the discussion of reuse.  Meeker pointed out three main areas required in making water reuse part of our reality.  First, she noted, leadership is key.  States need strong advocacy to create flexible polices and provide funding for reuse projects.  Second, more research is needed in the area to come up with answers to critical questions.  Finally, Meeker stressed the importance of education and outreach so the public understands the reason behind the creativity with water projects.  She explained that nothing can terminate a project like public outcry.

Changing the public perception to view treated water as a water source people will want to use will require both education and branding.  As Meeker mentioned, “Every drop of water we consume or use has already been used. . . . Water reuse does not involve drinking directly out of your toilet.”  Rather, she explained, it involves taking wastewater and running it through various treatment processes for specific purposes.  Getting this message across will aid the spread of water reuse.  After conducting a public perception research project, she found that labeling water as certifiable and describing the process of reuse made participants more receptive to using treated water.

WateReuse is taking steps to educate the public about water sustainability. On September 28, 2014, it will host a media workshop as well as a gala to educate the press and public about water reuse.  The gala, taking place in New Orleans, Louisiana, will serve only food and beverages that are touched by reused water, including the wine.  As we see a shift in our climate, Meeker advises, the time is now to embrace reuse as a critical water resource.

Jim Yannotta, Manager of Aqueduct, Los Angeles Department of Water, also spoke about the role of conservation and water reuse in the midst of droughts.  Stormwater capture has become a priority to utilize rain before it reaches the oceans, Yannotta noted.  Los Angeles County is working on large-scale projects, such as improving dams, to store more water.  Additionally, the county is encouraging individual homeowners to use stormwater barrels and cisterns to capture water for personal use, such as irrigation.  Despite its population growth, Los Angeles’s conservation efforts have stabilized its water use.  Los Angeles is one of the top two or three conserving cities, but Yannotta urged it must do more, especially with regard to landscaping.  He applauded the state for using treated recycled water for activities such as golf, but noted that California does not allow for the direct reuse of recycled waste water. Rather, it only allows for indirect portable reuse.

Although reusing water can benefit drought communities, subsequent speakers raised concerns about costs.  For instance, Jason Mumm, Director of Financial, Commercial and Risk Services for MWH Global, spoke about the hidden costs associated with reuse.  MHW Global is an enterprise that focuses on wet infrastructure projects.  It is based out of Broomfield, Colorado.  When reuse starts, the decrease in water flow going into the waste stream will concentrate the wastewater that runs directly into the treatment facility.  Subsequently, that water will cost more to treat.  While Mumm acknowledges that conservation is beneficial, he wants people to take into account the hidden costs.

While reuse and conservation may ameliorate water issues, without cooperation, water shortages may give rise to allocation and control issues.  As Governor Hickenlooper eloquently stated: “Water can either divide us or unite us, and in the end, it is our choice.”  The Governor compared Colorado to California and noted that Colorado is in a position to avoid some of the water use conflicts California is facing.  He mentioned that with the Colorado Water Plan, we are “calculated and conservative” and are able to accomplish more working together than separately.  He further elucidated the great cooperation occurring in Colorado.  When the recent floods damaged infrastructure, the water community was a leader in collaboration efforts.  In a matter of months, it raised around twenty-two million dollars in grants to help restore the state.

Pat Mulroy, Senior Fellow for Climate Adaptation and Environmental Policy for Brookings Mountain West, also stressed the importance of partnership and responsibility within the water community.  Mulroy explained that on the Colorado River, people are not only citizens of a state, but also citizens of a basin.  She noted that partnership is necessary so that the citizens of the basin can “continue to forge their own destiny.”  Collaboration is also crucial to ensure that Lake Mead, a water source for Nevada, California, and Arizona, as well as Mexico, does not fall below a certain level.

Mulroy highlighted issues in California’s Bay Delta Area to show the consequences of failing to work together.  The result of not cooperating, she explained, is that people in the Westlands Water District are experiencing fifty to sixty percent unemployment rates.  Additionally, food banks are not able to provide for the unemployed farmworkers.  According to Mulroy, the struggle is based in a discussion “nested in fear, suspicions, and the unwillingness to see that in this uncertain future, as more people move to the West, as our climate is changing, our only hope for sustainability, and our only hope for certainty. . . is through strategic partnerships.”

In contrast, despite the diminishing levels of Lake Mead, when Nevada’s partners wished to utilize their reserves, Nevada remained silent.  Because of water shortages, California and Mexico needed the water banked in Lake Mead.  Nevada did not fight this request because it knew that one day it might also have to call upon some of its reserves.  Mulroy explained, “As long as we continue the journey we started in the [19]90s, where we listen as much as we talk, where we give as much as we take, where we try to make the whole work, we will avoid that future which none of us want to face: a future of empty reservoirs, a future of community without a water supply, [a future] of rich farmland not being in production.

As the changing climate threatens those living in the West, the duty to conserve and work together falls to every individual.  As Taryn Finnessey, Climate Change Risk Management Specialist for the Colorado Water Conservation Board, pointed out, by 2050, climate models are projecting a two-and-one-half degree to five degree Fahrenheit increase in temperature in Colorado.  Finding ways to conserve, reuse, and store water is necessary to maintain an adequate supply as the temperature rises.

The featured image is of attendants to the 2014 Colorado Water Congress Conference. Image at http://www.cowatercongress.org/cwc_events/Summer_Conference.aspx.


O, dear daughter, be not discomforted!

They can attempt to possess your beauty

Beyond measure, without sufficient ends

And looking glasses, frenzy, berserk, de-

Hydrate marvels they have engineered in

Fact, conveyance, deed, statute, law, decree,

Cannot substitute for the Natural Stream

Of your loving boundless intimacy.”

 –Excerpt from “Mother to Daughter,” written and read by Justice Gregory J. Hobbs, Jr. in celebration of the 40th year of Colorado’s instream flow law January 15, 2014.

Roughly 200 western water policy enthusiasts gathered in the Colorado Supreme Court’s Courtroom on January 15, 2014, to celebrate the 40th anniversary of the state’s Instream Flow (“ISF”) Program and discuss the program’s role in the future. Twenty-four entities generously hosted the cordial event including the Rocky Mountain Land Use Institute, the Colorado Water Congress, the Nature Conservancy, the University of Denver’s Water Law Review, and the law firm Kaplan, Kirsh, & Rockwell just to name a few. Several of the attendees were Water Law Review former staff, Board members, and contributors.

ISF Program Background

In 1973 the Colorado legislature integrated instream flow water rights by entrusting the Colorado Water Conservation Board (“CWCB”) with the state’s appropriation authority to preserve the natural environment to a reasonable degree. ISF water rights are non-consumptive and in-channel or in-lake uses of water held by the CWCB to ensure minimum flows on certain reaches of streams and rivers and in lakes. The CWCB consults with hydrologists, engineers, natural resource scientists, and geomorphologists, among others to make factual determinations about which lakes and stretches of stream to preserve and improve to a reasonable degree. The IFS Program helps the state protect diverse ecosystems ranging from coldwater fisheries and waterfowl habitat to glacial ponds.

A series of lawsuits challenged the CWCB’s authority to appropriate water without diverting it from streams. Several water users claimed that in Colorado, the right to use water requires a physical diversion in addition to the claimant showing the water will be put to a beneficial use. Over time, the Colorado Supreme Court clarified that ISF appropriation by the CWCB is a legal means of ensuring minimum stream flow to preserve the natural environment to a reasonable degree, the CWCB’s water right is junior, and that the CWCB has a fiduciary duty to enforce the use right in the name of the people of Colorado.

Colorado’s 1986 legislature recognized the value of marketable water rights for instream flow by allowing the CWCB to accept donations and purchase senior vested water rights. “The board also may acquire, by grant, donation, bequest, devise, lease, exchange, or other contractual agreement… water, water rights, or interests in water…The board may use any funds available to it for acquisition of water rights and their conversion to instream flow rights.”  In this state, the right holder vests water rights through beneficial use of the water. The 1986 statute permitted the CWCB to convert the beneficial use from the original right holder’s use (e.g., agricultural use, irrigation) to the CWCB’s use of preserving or improving the environment to a reasonable degree and maintaining minimum stream flows and lake levels.

Since 1973 the CWCB appropriated over 9,000 miles of stream and roughly 480 natural lakes and acquired over twenty-five water right donations or long-term contracts for water totaling 500 cubic feet per second. That means that by 2014 the CWCB appropriated either junior or senior rights to nearly one third of the state’s perennial streams for preserving and improving the natural environment to a reasonable degree.

The ISF Program’s 40th Anniversary Celebration

Colorado Supreme Court Justice Gregory J. Hobbs Jr. welcomed attendees at the ISF Program’s fortieth anniversary celebration with his keynote historical overview of the state’s water laws. For twenty-three years before joining this state’s highest court, Justice Hobbs practiced environmental, land use, and water law. Since 1996 Justice Hobbs served the people of Colorado on our Supreme Court and plans to retire in 2016. Justice Hobbs read his fortieth anniversary ISF Program poem, “Mother to Daughter.”  Hobbs spoke enthusiastically about how the advocacy that led to instream flow rights demonstrates our community’s common bond: a deep value in Colorado’s rivers, streams, and lakes. He stressed that Coloradans put their hearts, minds, and passions into the water policy shift that the ISF Program embodies. Hobbs submitted that ISF Program “is a landmark of the integration of the values of the flow into a prior appropriation water law system.”

Justice Hobbs explained that the ISF Program came about following an intense pro-development era and represents the paradigm shift of the 1970’s when many people simply wanted to protect what was left of the natural world.  During this period the United States legislature enacted the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the Federal Land Policy and Management Act, along with other significant environmental legislation.

According to Justice Hobbs, the central challenge of the ISF right in Colorado was determining whether the state’s water laws allow a use-right without diversion. He explained that the 1975 Colorado Supreme Court gave deference to the legislature by upholding the ISF law because the CWCB’s water right is junior to the senior right holders and does not cause injury to prior water rights. Today, the ISF Program enables the CWCB to protect waterways and improve water quality.  Justice Hobbs concluded his introductory remarks by characterizing the ISF Program as “work well-done and work well to be done!”

A Retrospective on the ISF Program at Forty

Linda Bassi discussed the ISF Program’s accomplishments and moderated the first panel of speakers, which included Patti Wells and Eric Kuhn. After working for the CWCB for a decade, Bassi is now the CWCB’s Stream and Lake Protection Section Chief. She has extensive experience with the ISF Program both from her work at the CWCB and in the Attorney General’s office representing the Division of Water Resources and the CWCB.

Bassi explained the ISF Program has a multifaceted role in the water community. The program involves the CWCB’s (1) coordination with federal agencies to address federal resource protection goals through state-held water rights, (2) partnerships with water suppliers to enable water projects to move forward while protecting the natural environment, and (3) collaboration with Colorado Parks and Wildlife and conservation groups to protect and improve Colorado’s rivers, streams, and lakes. Bassi’s presentation included photos of stunning landscapes and waterways throughout Colorado that the ISF Program empowered the state to protect through appropriations, acquisition agreements, and donations. Boulder Creek, the Colorado River, Dead Horse Creek, and Hanging Lake are just a few of the watercourses benefiting from the IFS Program. Bassi noted that Governor Hickenlooper’s executive order compelling the CWCB to create Colorado’s first Water Plan (“CWP”) directs the CWCB to foster “a strong environment that includes a healthy watershed, rivers and streams, and wildlife.”

Patti Wells discussed the IFS Program’s elements that make it work and allow it to endure today. Wells serves as the Denver Water Board’s (“DWB”) General Counsel as she has since 1991. She also represents the City and County of Denver as a CWCB board member. Wells is a former board member of the Water Quality Control Commission and the Colorado Water Trust. Mayor Peña appointed Wells as Denver’s first female City Attorney.

According to Patti Wells, the ISF Program’s two essential elements are its “requirement for balance and the involvement of the public.” To demonstrate the balance element, Wells quoted the statute’s directive for the CWCB “to correlate human activity with reasonable preservation of the natural environment” and mentioned that over time this phrasing turned out to be brilliant. Wells maintains that the CWCB tends not to engage in extremist, absolutist discussions because the wording of the statute guides the CWCB to consider what is necessary to a reasonable degree.

Wells emphasized the ISF Program’s public notice and comment process while comparing the administrative agency setting to litigation. Wells suggested that much of the program’s flexibility is because the CWCB makes decisions in a boardroom with public input instead of in a courtroom. The fact that the CWCB’s determinations are reviewed under the Administrative Procedure Act is especially significant to Wells because it means that courts usually defer to the CWCB’s findings. In addition, when experts appear in front of the CWCB they do not duel each other as they might in a judicial proceeding.

Another strength of the ISF Program, according to Wells, is that the CWCB must have a natural landscape that requires protection in order to acquire rights unlike the federal government’s methods of water right acquisition. She used the example of Hanging Lake to illustrate part of the CWCB’s decision-making with regards to water rights acquisition. The Board hiked to Hanging Lake and after seeing “the mist in which the Columbine grows” determined that the landscape needed all unappropriated water there to protect that particular environment to a reasonable degree. Wells considers the ISF Program to function well because it is a robust form of state-based environmental protection that enables Colorado to protect itself from the “heavy hand of the federal government.” Wells concluded by commending the ISF Program for its contemplation of all water uses, inherent flexibility, and great results.

Eric Kuhn followed Patti Wells in the first panel of speakers. He is the General Manager of the Colorado River Water Conservation District, (the “River District”), a former board member of the CWCB representing the Colorado River Basin, and an at-large Inter-Basin Compact Commission (“IBCC”) representative. Working for the River District since 1981, Kuhn possesses a deep understanding of the work it does in this state. The River District’s charter from 1937 empowers it to “preserve and conserve for Colorado, its Colorado River Compact entitlement.”

Kuhn outlined the River District’s “evolution” in relation to the ISF Program explaining that it originally opposed the program, then it supported the program, then it opposed the program again. Today the River District works to improve the ISF Program. A future challenge Kuhn detects for the ISF Program relates to how the state should deal with recreational activities. He clarified that providing water for recreation is outside the scope of the CWCB’s charge to protect the environment to a reasonable degree but he perceives it as a looming dilemma that requires a broader discussion.

A Forecast for the ISF Program: Its Challenges for the Future

Melinda Kassen, the Principal of WaterJamin Legal and Policy Consulting Services and member of the IBCC, moderated the second panel, which included James Eklund, Drew Peternell, and Amy Beatie. Kassen posed several introductory questions to the panel such as “what new types of water rights could the state create”; “how far should the ISF Program go”; “should we be protecting shoulder flows”; “should we be protecting more than just cold-water fisheries”; “should we be protecting peak flows”; “what else can the state do to protect current flows while looking at warmer, drier times”; “who should be allowed to hold these flows—should it always remain exclusively in the hands of the CWCB”; and “how should the state evolve the program to make it stronger and more meaningful?”

James Eklund, the CWCB’s director, said, “people think of Colorado water law as a slow, lumbering beast with little ability to change—but if you step back and squint your eyes a little bit, or maybe a lot, you could get the impression that we actually have the capacity to innovate when the conditions demand it in this state.” Eklund submitted that the ISF Program is part of Colorado’s tradition of innovation in water law and policy and asserted that the CWCB’s Water Plan is the next step.

The Colorado Water Plan represents “shaping the future of Colorado with intention” to Eklund. He warned that without a comprehensive state water plan we run the risk of chaotic consumption of our most valuable resource in a divided and inefficient way that provides certainty to water users—consumptive and non-consumptive alike. Eklund urged that the Water Plan is crucial for maintaining state ownership and control over our waterways and the habitat the waters provide. He posited that if Colorado wants to maintain control over its water, then it requires “a way to preserve, improve, and enhance—to a reasonable degree—our ISF Program.” Eklund said that the CWCB is in the business of learning more about Colorado’s rivers, streams, and lakes. He believes the future of the ISF Program involves a deeper scientific understanding of the state’s water resources that will hopefully lead to an informed and engaged public that has access to good facts about water.

Drew Peternell, the Director of Trout Unlimited’s (“TU”) Colorado Water Project, followed James Eklund. TU is a national, nonprofit fisheries organization. TU’s Water Project mission is to maintain and restore Colorado’s rivers and creeks in order to sustain healthy coldwater fisheries.  Peternell argued that the future of the ISF Program would increasingly involve the acquisition of senior water rights in order to put water back into depleted streams. Additionally, Peternell urged that the CWCB must address concerns from irrigators since they own the majority of the senior water rights.  Peternell understands irrigators’ interests because his organization regularly partners with them on projects that mutually benefit agricultural operations and coldwater fisheries. He believes that the state needs to do more to make the ISF Program attractive to irrigators. Irrigators hesitate to participate in the program because they must transfer their beneficial water use to the CWCB. The process leading to the CWCB’s acquisition of senior water rights for restoring streams is too difficult, costly, and risky for many irrigators, according to Peternell.

Peternell discussed pending legislation proposed by Senator Gail Schwartz and endorsed it as a way to make the ISF Program attractive to irrigators. Senate Bill 23 would allow irrigators who make water efficiency improvements to transfer the right to the water saved by the efficiency improvement to the CWCB for instream flow use. Otherwise, there little incentive for irrigators to implement water efficiency measures in Colorado’s prior appropriation system. This would open a new category of water for ISF use to the CWCB. This bill would also incent organizations like TU to finance repairs of irrigators’ aging irrigation infrastructure and allow irrigators to modernize their diversion structures more easily, which would ultimately keep more water in the streams. Peternell’s emphasis on making it simpler, less expensive, and less risky for senior water rights holders to transfer their water rights to the CWCB for IFS use seems well placed.

Amy Beatie, the Executive Director Colorado Water Trust (“CWT”), left attendees with a sense of urgency to protect Colorado’s waterways. As a University of Denver Water Law Review founder and current Advisory Board member, former law clerk for Justice Hobbs, and member of the Colorado Water Congress’s Board of Directors, Beatie ardently spreads her passion for water law and policy. Beatie pointed out that the CWT does not have an advocacy or policy agenda. The CWT mainly participates in projects focused on restoring streams in times of drought. Beatie said that even though the CWT does not do policy, its people can still dream about what they want Colorado’s rivers to look like. Amy Beatie emphasized the “obvious, yet understated power of people.”  She asked the audience questions about what could be accomplished if every person in the room spent five hours thinking of ways to make the program better and acting upon their ideas. Beatie stressed the power of innovation. Beatie compelled the audience to imagine what the success of the ISF Program looks like and what they could do to make the program better. Beatie then pressed the audience to “stop imagining and let’s go out the door and start doing!”

Audience Questions & Conclusion

Both panels fielded questions related to instream recreational water use and recreational in-channel diversions (“RICD”s). Patti Wells expressed concern about the prospect of legally requiring water providers to deliver recreational flows and said, “I am not sure that those flows are the responsibility of the state to provide.” Drew Peternell mentioned the RICD Program and suggested the state should protect recreational values in rivers that do not currently have RICD protection with a water right or protective measure that goes beyond RICD’s. Amy Beatie believes adequate protections for recreational flows are in place because the Colorado Supreme Court acknowledged recreational use as a beneficial use. Beatie posited to the extent that recreational flows are “important to communities, they may be appropriated just like any other water right for a beneficial use.” Justice Hobbs opined on the matter of recreational flows stating, “we should be optimistic.” Hobbs does not believe Colorado needs to amend its constitution to address issues arising from recreational flows because he trusts the minds of the next generation to create new policies that serve all water users.

Some themes emerged throughout the afternoon of speakers as they discussed the ISF Program in the context of Colorado water law. Speakers stressed the ISF Program’s balance and flexibility as its strong points and highlighted Colorado’s role in water rights innovation. The concern about recreational flows and the RICD Program demonstrates the next horizon of innovation for instream water rights. Hobbs’, Eklund’s, and Beatie’s optimism and enthusiasm for the future of water law and policy in Colorado left many attendees with a smile as they trickled downstairs for the reception.

 

The title picture is of the Colorado Supreme Court courtroom, located in the new Ralph L. Carr Colorado Judicial Center. The picture  is licensed under the Creative Commons Attribution 3.0 Unported license to Jeffrey Beall, and the use of this picture does not in any way suggest that Jeffrey Beall endorses this blog.