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

plan (by April 1, 1986) to the court describing their proposed actions to
protect these wilderness water rights.

The Forest Servi ce report stated that there are no present threats to
wilderness water resources in Colorado. Existing water rights within Colorado
wilderness areas must obtain Presidential approval, pursuant to 16 U.S.C. 1133
(d)(4), in order to perfect undeveloped conditional rights or modify perfected
rights. Water rights on private land outside of wilderness areas, which might
affect wilderness waters, can be controlled by application of a number of
statutes, including the Wilderness Act (16 U.S.C. 1131-1136), the Organic
Administration Act of 1897 (16 U.S.C. 473-482, 551), and the Federal land
Policy and Management Act of 1976 (43 U.S.C. 1701 et ~).

Other protective strategies could include denial or conditioning of land
use aqthorization on Forest Service land outside of wilderness areas, but in
areas critical to wilderness water resources; acquisition of land or water
rights by the Forest Service in other critical areas; recommendations to the
President, Department of Justice, or other Federal agencies concerning their
responses to threats to wilderness water resources; and coordination with the
State of Colorado in water resource p 1 anni ng that may affect the status of
wilderness water. The Forest Service report concluded that it was unnecessary
to make any recommendations, since no identified threats to wilderness water
resources existed. The report did not specifically mention the use of
Colorado's instream flow program, but the program may be applicable in some
situations.

Judge Kane responded to the Forest Service Report in a memorandum opinion
and order, issued on June 3, 1987. Fi ndi ng the report i ncomp 1 ete, he
criticized the government1s unwillingness to consider adjudication of wilder-
ness area reserved water rights. The matter was once again remanded to the
Federa 1 defendants, wi th an order to submi tap 1 an in accordance wi th Judge
Kane's original directives by September 1, 1987. Failure to produce such a
report, warned the judge, would lead to sanctions of "formidable magnitudell
[Sierra Club v. lyng et al., and Colorado Water Congress et al. Memorandum
Opinion and Order, June 3, 1987, p. 17].

The question of the plaintiff's motion for summary judgment was partially
upheld and partially denied. To the extent that the Sierra Club sought a
ruling stating that Federal reserved water rights presented the only acceptable
means of protection for wilderness water re~ources, the motion was denied.
However, the Court did grant that the alternative methods of protection
proposed by the Forest Service demonstrated an abuse of that agency's
discretion.

The impact of S.B. 91 is not known at this time. It can be said, however,
that it has brought additional attention and focus to the possible application
of CWCB powers to provide protection for instream flows by providing possible
alternatives for assertions of Federal reserved water rights, and by stating
the means by which the eWCB may obtain water and water rights for inclusion in
the State instream flow program, resolving any lingering doubts that may have
persisted under the old law.

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