7921

• UCREFRP Catalog Number: 7921
• Author: Trembly, T. L. and G. A. Gould.
• Title: Opportunities To Protect Instream Flows In Colorado And Wyoming.
• USFW Year: 1987.
• USFW - Doc Type: Biological Report 87‎(10)‎,
• Copyright Material: NO

Additionally, S.B. 91 clarifies and, possibly, expands the authority of
the CWCB to:

acquire water by grant, purchase, bequest, divise, lease, exchange
or contractua 1 agreement from or with any person, i ncl udi ng granted
entity, such water, water rights, or interests in water as the board
determines may be required to preserve the natural environment to a
reasonable degree, and the board may initiate applications which it
determines as necessary or desirable for utilizing such water, water
rights, or interests in water, including applications for changes of
water rights or augmentation plants for this purpose (CRS S 37-92-
102(3)).

Several legal scholars argue that these powers were implicit in the CWCB
prior to the enactment of S.B. 91; however, their addition serves to provide
useful clarifying directions (Gregg Hobbs, Water Attorney; pers. comm.,
February 1986).

S.B. 91 was intended to be an invitation to the Federal Government to
enter into a cooperative approach with the State of Colorado in establishing
instream flows and lake-level habitat preservation on Federally administered
lands through the statewide system for the adminstration of water rights
(Martha Ezzard, Colorado Senator and sponsor of S.B. 91, pers. comm., April
1986). Advocates of the approach set forth in S.B. 91 point out that they
prefer the mechanisms now in place in Colorado for establishing instream flows
over the assertion of Federal reserved water rights. Because of the origin
and nature of Federal reserved ri ghts as a court-made doctri ne, the full
bounds or limits of the rights are speculative and provide no certainty as to
possible future applications. This uncertainty was most recently manifested
in the Federal reserved rights controversy for wilderness areas.

In fact, recent legislative changes to Colorado's instream flow program
contained in S.B. 91 have come about as a result of debate over Federal
reserved rights for Colorado wilderness areas. More specifically, debate has
focused on whether they exist, and if they do in fact exist, what is their
nature and extent. In the Federal District Court case of Sierra Club v. Block
[622 F. Supp. 842 (D. Colo. 1985)J, the Sierra Club brought suit against the
Federal Government (Forest Service and National Park Service) for failing to
exercise its statutory duties to protect Federal water rights implied in the
designation of lands under the Wilderness Act (16 U.S.C. ss 1131 et. ~.), in
the face of possible depletion of a portion of these waters as a result of
water development proposed within or adjacent to several wilderness areas.
Judge William Kane, in a lengthy opinion, traced the origin of Federal reserved
rights to water and concluded that their existence can be extended to Federal
wilderness areas, as of the date of the creation of the wilderness area.
However, he did not conclude that the Federal Government must comply with its
statutory duty to protect waters in wilderness areas exclusively through
claiming reserved water rights under the Federal reserved rights doctrine.
Rather, he remanded the action, directing the Federal defendants to reevaluate
all of their alternatives for complying with their statutorily imposed duty to
protect wilderness water resources. The defendants were required to submit a

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