BOARD00195

• Board Meeting Date: 3/20/2000
• Description: Water Resources and Power Authority Director's Report
• Board Meetings - Doc Type: Memo

Page 4
White River National Forest Management Plan Comments
Februarv 18, 2000

statutory authority! to do so; or secure CWCB's agreement to appropriate such flows directly and
have them adjudicated under Colorado law.

Further, we note with dismay that this goal and its companion objective herald a significant change
in the WRNF's historical practice of respecting Colorado's instream flow program and cooperation
with the program's administrators. When the Aspen Ski Company requested a modification of the
state's instream flow filings on Snowmass Creek, the WRNF rightly chose to stay out of the ensuing
litigation which was ultimately resolved within Colorado's water courts. Likewise, when the WRNF
desired aquatic and riparian protections for Dead Horse Creek, tributary to the Colorado River in
Glenwood Canyon, the WRNF worked closely with the appropriate agencies in Colorado
government to successfully adjudicate a state instream flow right for the entire flow of the stream.

In response to recent attempts by the Forest Service to take water from Colorado water users, the
United States Congress created a Federal Water Rights Task Force which prepared a report on this
controversy. The Report of the Federal Water Rights Task Force Created Pursuant to Section
389(d)(3) of PL 104-127 concluded that:

( 1) Congress has not delegated to the Forest Service the authority necessary to allow it to
require that water users relinquish a part of their existing water supply or transfer their
water rights to the United States as a condition of the grant or renewal of federal permits;

(2) Decrees entered in McCarran Amendment water rights adjudications are intended to
result in a binding allocation of the rights to the use of water for federal and non1ederal
purposes, including the use of water to attain the primary and secondary purposes of the
National Forests. Accordingly, the Forest Service may not use its permitting autharity to
reallocate or otherwise obtain water for National Forest purposes from non1ederal water
rights which have been or will be recognized in McCarran proceedings; and

(3) The Forest Service must attain the secondary purposes of the National Forests by
obtaining and exercising water rights in accordance with state and federal law and by
working with owners of non. federal water rights to achieve National Forest purposes;

l
C.R.S. fi 37-92-102(3).