SWSI Environment and Recreation Needs and Priorities TRT Draft

Home Browse Search

"In water law, Colorado has a reputation for doing things a bit differently than other states - for instance its water court system requires the use of more lawyers and water engineers than any other state. With instream flows, Colorado maintains its reputation, requiring very careful scrutiny of water rights used to protect the environment. This approach creates additional costs and hurdles for environmental water transactions, but results in rights that are well defined, secure and defensible." 4 (page 52) "Assuming that environmental rights are defended and enforced once established, rights are more secure because of the Colorado water system. Unlike many western states, Colorado water rights are essentially fully adjudicated. Information about water rights and use is easy to find and rely upon compared to most states. It is comparatively easy to know about new appropriations or changes to existing rights that may affect an instream right." 4 (page 56) Another recently completed study comparing instream flow programs in western states found that Colorado has "perfected more permanent water rights than any other [western] state; in fact, more than most other [western] states combined." 5 Colorado has established instream flow rights on over 8,500 miles of stream and 486 natural lakes in the state, and continues to provide instream flow protection to approximately 40 new stream segments each year. Instream Flow and Natural Lake Level Rights Provide Legal Protection for the Natural Environment Balancing human needs with the needs of the environment can be a difficult task; providing legal protection for environmental needs can be even more daunting. Rather than creating a "super" right, or mandating bypass flows, Colorado's system of integrating instream flow and natural lake level water rights into the state's water right allocation system places these water rights on an even plane with traditional, consumptive water uses. Instream flow and natural lake rights are permanent, fully adjudicated water rights and are administered as any other water right in the state, consistent with Colorado's Prior Appropriation Doctrine. Instream flow and natural lake rights in Colorado provide legal protection for the natural environment by awarding them status as permanent, fully adjudicated water rights. These rights protect flow through a reach of stream, not just at a bypass point, and have legal standing in Water Court to protect against injury at any point within that instream flow reach. New Appropriations Preserve Existing Stream Conditions Under state water law, adjudicated water rights are entitled to stream conditions as they existed at the time of appropriation. Junior priority instream flow water rights cannot affect operation of any senior decreed water rights. However, if a change of water right is sought for the senior water right, CWCB has standing in Water Court, just as any other water right owner, to ensure stream conditions are not altered to the detriment of decreed instream flow water rights. This fundamental premise forms the basis for CWCB to file Statements of Opposition to potentially injurious change of water right applications, and to require protective terms and conditions in the applicant's decree. The CWCB has successfully negotiated terms and conditions to insure its instream flow water rights are protected in over 99% of the cases it enters; thereby allowing the water right change to proceed and the stream to be protected. Water Acquisitions Provide a Mechanism for Improving or Restoring Flows 5 "Decades Down the Road: An Analysis of Instream Flow Programs in Colorado and the Western United States, prepared by Sasha Charney for the Colorado Water Conservation Board, July 2005. http://www.cwcb.state.co.us/isf/Programs/WesternISF.htm