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I I I I I I I I I I I I I I I 'I I I I 8. 9. See discussion of City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992), infra at notes 29 - 36. In the real world, streams do not flow ata fixed rates year round. Thus it might be possible to obtain an instream flow right for higher flows which would come into priority only during high flow periods. 10. E.g., 1977 MonL Laws ch. 452 ~ 26 (codified at MONT. CODE ANN. ~~ 85-2-102(2)(a), 85-2-316 (1992). 11. California v. Fed. Energy Regulatory Comm'n., 495 U.S. 490, reh'g. denied, 497 U.S. 1040 (1990). 12. Colorado has been struggling with this issue recently. It enacted an instream flow statute in 1973, and the state has since approved over 1,000 instream rights on over 7,000 miles of streams. Now developers are beginning to argue that they should be allowed to build reservoirs "on top" of some of the streams with instream rights. The issue almost came to a head in Colorado in 1985 when developers proposed construction of a new, on-stream reservoir (the North Sheep Mountain reservoir) and for enlargement of the existing Button Rock reservoir. Together, the reservoirs would have inundated approximately five miles of North Sl Vrain Creek, state-designated "Wild Trout Waters" which arise in Rocky Mountain National Park and flow through a canyon that is part of Colorado's Natural Areas program. The Colorado Water Conservation Board ("CWCB") holds an instream flow right of 14 cfs with a 1978 priority for the stretch of the North S1. Vrain between the boundary of Rocky Mountain National Park and the inlet of Button Rock reservoir at its current level. The CWCB deliberated, but ultimately voted against filing statements of opposition to the applications. Members expressed the view that enforcing instream flows in derogation of junior water storage rights was not the legislature's intent in creating the instream flow program. After the CWCB decided not to protect its instream flow rights, the Sierra Club filed a motion to intervene and statements of opposition to the applications. On the date the response to Sierra Club's motion was due, the developers instead withdrew the applications for water storage rights. Subsequent efforts to clarify the law through legislation have been defeated, and the issue is now being addressed through a rulemaking procedure by the Colorado Water Conservation Board. See chapter 11 of this book. 13. Clean Water Act, ~ 404, 33 US.C. ~ 1344 (1989). 14. If the federal government cannot protect under state law its water on federal lands, it simply overrides state law. The result is what is known as the federal reserved rights doctrine. Winters v. United States, 207 U.S. 564 (1908); Arizona v. California, 373 U.S. 546 (1963); Cappaert v. United States, 426 U.S. 128 (1976); United States v. New Mexico, 438 U.S. 696 (1978). In a similar vein, see Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985) (holding that the Clean Water Act may override water rights obtained under state law). As state instream flow programs gain recognition in the West, courts (and the Congress) may be less inclined to expand the body of federal law protecting instream rights. Also, see discussion of FERC preemption at text accompanying note 11. 2-15