New instream flow rights proposed for Coal and Brush Creeks by HCCA

Balancing protection with beneficial uses

By Alissa Johnson and Olivia Lueckemeyer

The protection of instream flows in Coal Creek and Brush Creek is getting a closer look, thanks to High Country Conservation Advocates (HCCA) and American Rivers.

In January 2016, the advocacy groups submitted new instream flow proposals for both waterways to the Colorado Water Conservation Board (CWCB) as a way to help ensure that future water uses do not compromise the health of the streams.

The proposals were submitted as part of the Instream Flow Program overseen by the CWCB. The Colorado State Legislature created the program in 1973. According to information provided by Linda Bassi, Section Chief with the CWCB, at the time, many were concerned that Colorado had no mechanism to keep water in streams for environmental preservation. Those concerns were shared at the federal level and the state level, and among the general public.

The Instream Flow Program sought to maintain flows in streams that balanced a “reasonable” preservation of the natural environment with other beneficial uses of water—it also worked within the existing water rights system.

As a result, instream flow water rights can be established to maintain a specific rate of flow between two points on a stream. That water right is junior to previously established water rights but protects against future uses that might draw too much water from a stream and jeopardize its environment.

While the board regularly receives instream flow proposals from Colorado Parks and Wildlife (CPW) and the Bureau of Land Management, the program is unique in that anyone can participate.

“Any person or entity can recommend an instream flow water right to our board,” Bassi explained, though she emphasized that there is a lot of homework to be done in order to do so. Those individuals or entities must do some of the groundwork to ensure recommendations are rooted in science. Proponents must consider factors such as water availability and what flows potential fish species need in order to maintain a healthy population.

Bassi explained that with a group like HCCA, the board provided basic information on how to propose instream flow water rights, and then the group worked with its own experts to conduct measurements. Other groups lack those resources and will sometimes ask CPW to help conduct those analyses.

“What HCCA did with American Rivers was look at the current hydrograph to propose what it should be right now based on the changing climate and changing snowmelt to bring it up to date,” explained Mel Yemma, outreach director for HCCA. “We’re also trying to make it more seasonal, so we have a different flow proposal for summer versus winter to mimic the hydrograph for each stream.”

For Brush Creek, the current instream flow right varies with the season: 8 cfs (cubic feet per second) May 1 through September 30 and 5 cfs for the rest of the year. HCCA proposed a more nuanced instream flow right, ranging between 7.17 and 15.86 cfs depending on the time of year.

For Coal Creek, the current instream flow right between Irwin and the Spann-Nettick Ditch is 2 cfs. The proposal by HCCA and American Rivers calls for an increase to 7.85 cfs between April 15 and October 15, and to 4 cfs from October 16 to April 14.

“Coal Creek is an important stream for our entire community—it’s the source of our drinking water and a central feature of our local landscape,” said Julie Nania, HCCA’s water program director.

She explained that during low flow years, Coal Creek can dry up before it reaches the Slate River, as it did during the drought of 2012. At the same time, a United States Geological Survey stream gauge in Coal Creek shows that flows exceed 300 cfs during spring runoff (1 cfs is roughly the size of a soccer ball).

“Yet the existing protection on Coal Creek is only 2 cfs and the process used to establish this amount does not satisfy modern standards for minimum streamflow protections,” Nania continued.

Brush Creek may not supply drinking water, but it is home to an important population of native Colorado Cutthroats. According to Nania, its current protections accommodated development plans that never came to fruition.

“On Brush Creek, we hope to protect a minimum flow that no longer has to accommodate expired development plans and also considers spring peak flows,” she said.

Now that the CWCB has received the proposals for each stream, its staff is conducting further analyses and a year of outreach, including public hearings and meetings with key stakeholders like the Gunnison County commissioners.

At a July meeting with the commissioners, deputy chief of the Stream and Lake Protection Section of the CWCB Jeff Baessler explained that the next step is to compare the recommendations made by HCCA and American Rivers with the findings of the board’s water availability analysis. If the recommendations do not meet water availability requirements, Baessler says, he will meet with the engineer for revisions.

“These may not be the final numbers we send to the board,” Baessler explained to the commissioners. “There are usually tweaks that occur in regard to the time periods; however they do perform their own cursory water availability analysis. We just do a more detailed and involved one, and usually they are fairly close.”

Following a public notification period, the intent to appropriate will be recommended to the board early next year.

“If everything goes as planned, in January we will bring all of the information to our board and ask our board to declare its intent to appropriate the instream flow water right,” Bassi told the Crested Butte News. 

That kicks off a process wherein someone can file a notice to contest the instream flow right by March 31. If the proposals are contested, hearings will be held in September.

For HCCA, the ability to propose instream flow rights has become an important part of its water program. But as Nania said, the proposed flows are base levels. She and HCCA are focused on broader efforts as well.

“For ecosystems to be healthy in the long term, it is important that we collaborate locally to improve streamflows beyond these base levels while working to restore riparian and aquatic ecosystems. To accomplish this, other components of our water program include working with water users on conservation and efficiency projects, collaborating with water resource managers on management planning, and maintaining or improving water quality,” Nania said.