WSP09490

• File Number: 7630.125
• Description: Wild and Scenic - Colorado Wilderness Act - 1991
• State: CO
• Basin: Statewide
• Date: 7/19/1993
• Author: Unknown
• Title: Colorado Wilderness Act of 1993 - 103 rd Congress - 1 st Session - A Report
• Water Supply Pro - Doc Type: Report/Study

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18

WATER

Section 8 addresses water and water resource facilities. Sub-
section 8(a) recites findings upon which the section is based, states
the section's purpose, and provides a definition of the term "water
resource facility" as used in the section.
As stated in the findings, section 8 is entirely premised on cer-
tain specific characteristics of the lands designated as wilderness
by section 2(a) of the bill, namely-
(1) these lands are located at the headwaters of the streams
and rivers located on those lands, with few if any opportunities
for diversion, storage, or other uses of water that could occur
outside these areas that would adversely affect the wilderness
values of the areas;
(2) these lands are not suitable for use for development of
new water resource facilities or the expansion of existing water
resource facilities; and
(3) therefore, proper management and protection of the wil-
derness values of the specific areas covered by section 2(a) can
be provided for in ways different from those employed with re-
gard to wilderness lands lacking these particular attributes.
This being the case, section 8 is intended to protect the wilder-
ness values of the lands described in section 2(a) by means other
than those based on assertion of Federal reserved water rights.

RESTRICTION

Subsection 8(b)(1) would prohibit any person (including the Sec-
retary of Agriculture or any other person) from acting as the agent
of the United States in asserting in any court or agency any claim
for water or water rights in Colorado based on construing any por-
tion of the bill (or the designation by the bill of any lands as wil-
derness) as constituting either an express or implied reservation of
water or water rights. It also would deny any court or agency any
statutory jurisdiction to consider any such claim: a restriction en-
compassing any jurisdiction otherwise available under any Act of
Congress. (Of course, nothing in this Act could have the effect of
altering the original jurisdiction of the Supreme Court of the Unit-
ed States under clause 2 of section 2 of Article III of the Constitu-
tion, which could be altered or restricted only through an amend-
ment of the Constitution itself).
The effect of enactment of paragraph 8(b)(1) will be to deny any-
one (including but not limited to a person holding an established
office of the national government) the authority to assert on behalf
of the United States, and to deny a court or agency any statutory
jurisdiction to consider, a claim that the bill's designation as wil-
derness of the lands described in section 2(a) has the effect of re-
serving to the United States any water or water right with respect
to those lands. The scope and applicability of paragraph 8(b)(1) has
been carefully limited in order that the withdrawal of statutory ju-
risdiction over a particular t) }'6 Df claim will in all othei' l'eSpeChi
leave completely undisturbed the general body of law (including the
so-called "McCan-an amen.dment", 68 Stat. 5480; 43 D.S.C. 666) 1''0-
garding the jurisdictions of U.S. and State courts and agencies with
r:ospect to water,