Jo Evans

Under Colorado surface water law, a water right is the right to use water. We do not own the drops of water, but we own the right to put the water to a beneficial use. Beneficial use is the measure of a water right under Colorado law. Originally only agricultural, municipal industrial and domestic uses were recognized beneficial uses.

In 1972 strong pressure for a constitutional amendment to protect streams caught the attention of the Colorado General Assembly. The grass roots movement, led by Colorado Trout Unlimited, sought to create an environmental water right. CTU sought to create a right to protect the stream itself. Water left in the stream for environmental purposes could be owned, as all other rights were, by anyone who could establish a legal right in accordance with the doctrine of prior appropriation.

The Colorado legislature responded by creating the Instream Flow Program in 1973, which recognizes protection of the environment as beneficial use. On behalf of the people of Colorado, the state of Colorado was authorized to appropriate water in natural streams and lakes sufficient "to protect the environment to a reasonable degree." Unlike the proposed grass roots initiative, under the ISF program enacted by the legislature, only the state can hold instream flow rights. Individuals cannot. The state, however, owns the rights as a fiduciary agent for the people of Colorado. All ISF rights are public rights.

The Colorado Water Conservation Board (CWCB) establishes the right. The public's instream flow rights are full, legal, water rights, decreed in state water court, subject to all the same protections, procedures and requirements as all other water rights. No subsequent change may injure an ISF.

To date the CWCB has appropriated instream flow rights on some 8000 miles of stream and 485 natural lakes.

ISF is central to the mission of CTU. Over the 33 years of the program, There have been modifications of the original statute. Development interests have launched several attacks on the ISF Program, and each time, CTU has been in the vanguard of the ISF defenders.

In 2003 we succeeded in adding a significant improvement to the existing law with the passage of SB156. Previously, ISF could only be used to protect an existing pristine aquatic environment. ISF could not be used to improve impaired habitat. Subsequent to the CTU legislation, ISF can now also be used to improve a stream.

At the 2003 Rendezvous, CTU awarded high honors - the Trout Conservation Award - to the sponsors of SB156, Senator Ken Gordon and Representative Matt Smith