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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Solicitor's Opinion dated July 26. 1988. which was affirmed in a .emorandum
signed by the Attorney General on July 28. 1988. Briefly. the opinion
concludes that. without express language to the contrary. Federal water rights
are not reserved when wilderness areas are designated. The opinion reasoned
that Congress intended that the original reservation of the land, be it
National Forest. National Park. or National Preserve. would carry with it
water rights sufficient for primary reservation purposes. Subsequent
wilderness designation was a .secondary purpose" for which no water was
reserved. The original reserved water rights would be sufficient for the new
.purposes..

However. in the case of most of the land administered by the BLM. designation
as wilderness would likely be the original reservation. Thus. it could be
argued that water should be reserved for wilderness purposes. Ignoring. for
argument's sake. the Supplemental Solicitor's Opinion. the designation of a
wilderness overlying a National Monument could be viewed as a new reservation.
even though secondary. which could be construed to expand the purposes of the
area and thereby expand the reserved water rights. In either case. these
water rights would carry a priority date coincident with the date of
reservation as wilderness and would have the characteristics of junior water
rights discussed earlier.

Having said this, it should be noted that the Supplemental Solicitor's Opinion
stands and designs tion of land 1n Colorado as wilderness is doubtful in the
near future because the question of water rights continues to be debated.

The decision to include in enabling legislation language addressing reserved
water rights rests with elected representatives. So, too, the decision to
e~'b~:;C<' or reject such rights. With regard to National Park Service (NPS)
manbgeIIle: t of tbese areas if expanded, the existence of such a rigbt could
provide tOe NPS with opportunity to limit, through action by the State in its
protection of junior water rights holders, impacts to primary reservation
purposes. However, this opportuo...1 ty represents uncertainty and potential
conflict in the eyes of those who have expectations of future water resource
development or change.

I hope this information is of value to your assessment effort. If additiOQal
assistance, clarification, or background information is required, please call
me at [phone]. If a legal opinion is needed from either the Office ,of
the Solicitor or the Department of Justice, the Water Resources Division will
be bGppy tc assist in the formulation of a request.

19~ () U1L-

Attacment

cc: RMR - Rouse, Hermance
WRD - Ponce, Kimball, Jackson, Pettee, Czarnowski

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