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Colorado's cold-water conservationists plan to deliver a message to the legislature about the state's antiquated "Use It Or Lose It" principle of water use: It's wasteful. Lose it.
The 19th century legal doctrine is polluting and drying up mountain streams, killing fish and wildlife and damaging economies dependent on the state's $1.3 billion fishing industry and $122 million commercial rafting industry.
State law denies streams water because it considers flowing water not a "beneficial use" unless it is bound for a field, power plant or lawn. The lower the stream, the less able it is to shed human-induced toxins.
The effects could be seen last summer, when a plethora of golf courses along the Eagle River stayed lush and green while trout in the shrunken Eagle died of a fungus disease called furunculosis.
Colorado's water allocation system is older than outhouses. It was conceived when it was politically correct to raze and extract with impunity, dynamite trout streams and eliminate native people and bison to make room for settlers and cattle. The creaky water laws are unable to cope with the state's rapid growth and the subsequent strangling of rivers and streams.
"Use It Or Lose It" requires senior water-rights holders to milk every drop of their entitlement from streams and rivers or lose their rights. Even the most enlightened rancher is forbidden to put water back in a stream for his use or the use of the public.
"This means that an irrigator has to take water out of a stream even if that irrigator no longer needs the water," said Melinda Kassen, director of Colorado Trout Unlimited's Colorado Water Project.
Kassen and other Trout Unlimited executives released a report citing 10 examples of mountain streams, from the Cache laPoudre to the La Plata River, where stretches routinely are dried up. The report, available in public libraries and at www.tu.org, says state data reveal 571 waters where low flows or fluctuations limit aquatic life.
The report, Dry Legacy: The Challenge for Colorado's Rivers, laments the frontier law's waste of water and its inability to cope with uncontrolled growth. It offers strategies for keeping water flowing in streams and rivers, including implementing several neglected laws on the books.
For example, Kassen said, "Colorado has a law that prohibits wasting water. It is almost never enforced."
Since 1973, Colorado also has had in-stream flow protection to keep bare minimum flows trickling for trout during dry times. But the provision is essentially useless. It protects a tiny percentage of streams and is unenforceable, collapsing when senior water-rights holders call for more water.
State Sen. Ken Gordon, D-Denver, said he plans to introduce a bill in the General Assembly this year that would allow ranchers to release water for fishing, rafting or preserve riparian habitat.
"It allows water that is in the streams to be a beneficial use. You're not forfeiting it or giving it up," Gordon said. "You could donate a water right to preserve stream flows."
Gordon said his bill also would allow several state agencies to share in decisions on in-stream flows. Those decisions now are made by the Colorado Water Conservation Board, sole guardian of the obsolete water system.
Bill Gordon, a rancher who owns the Sweetwater Ranch on the South Fork of the South Platte and isn't related to the senator, said he supports such an arrangement.
"There are many ways the ranching community can and will assist in improving the quality and quantity of water," he said. "But incentives must be offered."
Kassen said the strategy put forward by Trout Unlimited would employ stream-saving practices already in place in other states, including Montana, California and Oregon.
"My colleagues in Montana are doing a (new) lease every month from ranchers to put water in streams," she said. "If only we had that tool."
Contact Ed Dentry of the Rocky Mountain News at www.rockymountainnews.com.
1dMarc Stein and Ramona Shelburne