7386

• UCREFRP Catalog Number: 7386
• Author: National Park Service.
• Title: Resource/Boundary Evaluation for Lands Adjacent to Black Canyon of the Gunnison National Monument, Colorado.
• USFW Year: 1990.
• USFW - Doc Type: Washington, D.C.
• Copyright Material: NO

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In summary, a simplistic description of the doctrine of reserved rights is--a
right for the Federal Government to use unappropriated vater arises, by
iIIpllcation, on the date of (and by the act of) the Federal Government' s
creation from the Public Domain of a reservation for specific purposes. The
water right Is for the primary purposes of that reservation and Is only for
the minimum amount necessary to prevent the defeat of those purposes.

!lIB COUI/BLCA S:mJArI(If

On the basis of the foregoing we may view the COLM/BLCA situation as follows.
oy reserved water rights created, implied, or explicitly stated in the
enabling legislation, would come from vater then unappropriated under State
law, would have a priority date as of the date of the new reservation, and
would be for the minimum amount necessary to prevent defeat of the
reservation's primary purposes. As a practical matter, such a water right
would Dot likely be very good in this particular instance. It would be in a
basin whose water has been allocated under terms of an interstate compact and,
within the State, is probably fully appropriated. A late 1980' s or early
1990' s priority date would have little real significance in providing water
for the reservation. Furthermore, because the Federal reserved water right is
for the minimum amount to prevent defeat of the primary purposes of the
reservation, significant debate would likely surround the determination of the
quantity of water actually reserved.

It is important to note that a water right, even a very junior one, has
1Ilplications which could be viewed as either problematical or advantageous,
depending upon perspective. In Colorado, as in 1D0st western states, changes
in existing vater rights (e.g., changes in location of diversion and/or use
and changes in timing or type of beneficial use) must be approved by the State
through either court or administrative action. Before such changes are
approved, however, it must be demonstrated that junior appropriators will not
be injured. Such a determination may be made 1D0re difficult by the existence
of a Federal reserved water right, especially if that right were for in situ
uses such as instream flow or environmental protection/enhancement. Thus,
those interests which look for future changes in water development may
perceive a Federal reserved water right, implicit or expressed, as a potential
limitation upon future development opportunities.

On the other hand, while actual amounts of vater which could be secured for
present and future use may be limited, a Federal reserved vater right could
provide a limited degree of assurance that existing resource conditions may be
protected into the future. Further, in view of the fact that water deliveries
are required to downstream states and the Federal reserved water right IIight
be non-consumptive in nature, a late date reserved right could possibly be
created and aet through interstate deli ver1es. The shortcoming of such a
scheme would probably be found in the longer term aYerale nature (IO-year
aean) of the dell very requirement in contrast to the a_ftJI1 needs of a
Natiooal Park/Monument.

VILDElDSS

Because part of the land proposed for upans10n is now a wilderness study area
under Bureau of Land Management jurisdiction, another aspect of theCOLM/BLCA
situation that needs to be considered is Federal reserved water rights
associated with wilderness designation. This vas the focus of a Supplemental

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