"Adequate Progress," or Rivers Left Behind? Developments in Colorado and Wyoming Instream Flow Laws since 2000
Benson, Reed D., Environmental Law
I. INTRODUCTION II. COLORADO AND WYOMING HAVE BOTH FOLLOWED THE TRADITIONAL WESTERN APPROACH TO INSTREAM FLOWS A. Basle Features of Colorado and Wyoming Instream Flow Statutes 1. Only State Agencies May Hold Instream Flow Rights 2. Instream Flow Rights Are for Limited Purposes, Primarily to Protect Fish 3. Newly Created Instream Flows Are Water Rights with Junior Priorities 4. Water Rights May Be Transferred for Instream Use Through the State B. Criticism of the Typical Western Approach to Instream Flows 1. State Agencies Determine the Degree of Protection 2. The Purposes of Instream Flow Rights Are Too Narrow 3. Instream Flow Rights Only Protect What Is Left, Which Is Often Very Little 4. Rigid Limits on Water Rights Discourage Transfers for Instream Use III. HAVE COLORADO AND WYOMING MADE PROGRESS IN THEIR INSTREAM FLOW LAWS? A. Allowing Other Entities (Beyond State Agencies) to Protect Flows? 1. Colorado 2. Wyoming B. Allowing Instream Plow Water Rights for Purposes Beyond Fish? 1. Colorado 2. Wyoming C. Seeking Flow Restoration Through State Action? 1. Colorado 2. Wyoming D. Providing Legal Flexibility for Water Right Transfers to Instream Use? 1. Colorado 2. Wyoming IV. "ADEQUATE PROGRESS" ON INSTREAM FLOWS A. Considering Colorado and Wyoming Developments Since 2000 B. Suggested Reforms in Colorado and Wyoming Instream Flow Laws V. CONCLUSION
According to the program for the Western Instream Flows Conference, this Article ought to provide a report card or class ranking on the Colorado and Wyoming instream flow programs, (1) and it does indeed evaluate these two states' instream flow laws. But I have not given them grades or rankings, partly because I (like many law professors) have little enthusiasm for the task of grading, and partly because letter grades seem a little too "old school." Instead, I have looked to President Bush's "No Child Left Behind" law (2) for a modern, "compassionate conservative" approach to assessing performance. This 2002 statute requires schools to demonstrate "adequate yearly progress" in educating their students. (3) In keeping with this "No Child Left Behind" principle, I will address the question of whether Colorado and Wyoming laws have made "adequate progress" since the year 2000 in providing for protection and restoration of instream flows.
Colorado and Wyoming have much in common, (4) including many similarities relating to water supply, management, and use:
* both states are headwaters states in that they are each the source of several major rivers including the Colorado, Snake, Platte, Yellowstone, Green, and Rio Grande;
* both states are semi-arid to arid (5) due to very limited annual precipitation except for snowfall in and around their mountains;
* both states' greatest use of water, by far, is for irrigation, which accounts for more than ninety percent of all of their water withdrawals; (6)
* both states' rivers provide great fishing, whitewater boating, and other forms of recreation;
* both states have enshrined the prior appropriation doctrine in their constitutions; (7) and
* both states have played a key role in the development of western water law. (8)
II. COLORADO AND WYOMING HAVE BOTH FOLLOWED THE TRADITIONAL WESTERN APPROACH TO INSTREAM FLOWS
Colorado enacted its original instream flow statute in 1973, (9) while Wyoming did so in 1986. (10) Although there is considerable variation among instream flow laws throughout the western states, (11) the Colorado and Wyoming statutes are typical of these laws in several important respects.