White Jankowski Lawyers

Water Court ruling re: environmental and recreational flows

September 27, 2012

Water Judge Patrick issued a ruling on September 26, 2012 regarding a motion for determination of a question of law filed by the Colorado Water Conservation Board (CWCB).  The CWCB asserted that the applicant, Montrose County, could not obtain a water right to protect water released from storage without filing for a recreational in-channel diversion (RICD) or contributing flows to an instream flow (ISF) right decreed to the CWCB.  The court rejected CWCB’s argument that in-channel uses are limited to RICDs or ISFs and concluded that water may be used in-channel for recreation purposes without an RICD or CWCB ISF decree if it has previously been diverted and stored.  However, the court left open whether Montrose County’s application requested an RICD for water to be released from storage for instream uses. 

Although the case later settled out of court, the ruling is helpful for efforts by other water users to protect ISFs.  RICDs are limited by specific statutory requirements, and ISFs can only be decreed to the CWCB.  Judge Patrick’s ruling confirms that an additional option remains to divert and store water for later releases for recreational purposes.  This may assist counties and other entities in creative efforts to protect streamflows, particularly late in the season when an RICD or ISF right is likely to be out of priority and stored water may be available to supplement streamflows.  Read the water court ruling here.