Citizen's Guide to Colorado's Environmental Era

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Colorado's water history and development was largely avoided. Correspondingly, most wilderness areas designated by 1980 enjoy a robust, natural cycle of water flows, adding to and enhancing their wild character. Water issues did leave their mark on a few wilderness areas designated in Colorado up to 1980. Some boundar- ies for Eagle's Nest Wilderness (1976) in Summit ' County, were drawn upstream from several proposed water diversions, the same time, and not entirely coinci- dentally, wilderness advocates pressed in court for a formal recognition of water protection inside wilderness. Up until the 1980 Colorado Wilderness Act, the status of water in wilderness had been mentioned only in the Wilderness Act itself, yet without conclusive instructions for federal wilder- ness managers. The Wilderness Act implies a federal obligation to protect an amount of water Portions of the West Elk and Maroon Bells - Snowmass mountains were two of the five original Colorado wilderness areas designated by the 1964 Wilderness Act. That designa- tion comprised only the most rugged core of the range, and it took the devoted efforts of local conservationists to enlarge the area through Colorado wilderness legislation passed in 1980. This expanded area includes such notable landmarks as Mount Sopns, Castle Peak, and the lower reaches of the Conundrum Creek valley. Today, Maroon Bells- Snowmass is Colorado's fourth largest wilderness area. and the Holy Cross Wilderness (1980) in Eagle County carried an allowance for future development of a major water diversion (although that project has not been built and its construction now is considered unlikely). For the greater part, however, Colorado wilderness approved before and in 1980 was largely free of water development conflicts. That trend changed abruptly in 1983. The Colorado Wilderness Act of 1980 designated 14 new wilderness areas. It also placed several other areas into a study category, with instructions to the Forest Service to report back within three years on their wilderness potential. Some of those areas postponed for fur- ther study included private land inhold- ings; others needed boundaries clarified. However, some delays occurred because not all proposed areas were not at the top of watersheds. The notion of natural flows of water for those wilderness areas became more controversial. By 1983, the Forest Service completed its studies, and legislation was introduced to designate them as wilderness. About necessary to fulfill the purposes of a wilderness designation, stating: "...each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area..." It does not specify, however, how much water should be protected, or in what manner, in order to follow those instructions. The Wilderness Act does state, "Nothing in this Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from state water laws." The Act also allows the president to approve future water projects inside wilderness if those projects are in the national inter- est. (Even in 1964, facing a collection of headwaters wilderness proposals, Chairman Aspinall could see that water and water law would become a wilder- ness issue.) Before 1983, no federal wilderness manager in Colorado, primarily the Forest Service, had claimed a right to water in wilderness streams. In 1984, wilderness advocates asked the court to 32 1 COLORADO FOUNDATION FOR WATER EDUCATION direct the Forest Service to assert such a claim. Since Colorado water law only delegates authority to claim instream flows to the state government itself, a fight was engaged. For nearly a decade, and long after wilderness boundaries and management issues had generally been settled, the water issue delayed new Colorado wilderness legislation. Since the great majority of lands included in the Forest Service's 1983 report were headwaters areas, the debate over fed- eral water rights and instream flow protec- tions was essentially a theoretical one. That fact did not make the controversy and its resolution any less real or difficult. Finally, late in 1992, negotiators led by Senators Hank Brown and Tim Wirth crafted new water language. Somewhat simplistically stated, extensive passages of what became the Colorado Wilderness Act of 1993 imply a federal water right for wilderness purposes may be allow- able, but bar federal officers from assert- ing such a right for wilderness areas in the new bill. As a gesture to wilderness protection, the bill also exempts the 1993 areas from the presidential approval of water projects. The 1993 act designated as wilder- ness only areas in headwaters locales. Two other areas located downstream were given status protecting their wilderness values in every manner except name. Meanwhile, one federal court deter- mined that protection of wilderness areas may warrant protection of water flow- ing through them, but in that case the federal government was not obliged to seek water rights for that purpose. Some opponents of wilderness water rights argued that the court's ruling meant if Congress wants wilderness areas to have water protection, then it must stipulate how to apply that protection. While some wilderness designa- tions approved by Congress since 1993 have specifically granted feder- ally reserved water rights for wilder- ness, none of those designations has been made in Colorado. As the Colorado experience from 1983 -1993 suggests, the issue of federal reserved water rights or other means of protecting natural flows of water in wilderness becomes more practical and poignant in proposed wilderness areas below headwaters. Such is the case for many proposals on federal land administrated by the Bureau of Land