BOARD00356

• Board Meeting Date: 5/22/2000
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

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Instream 110'11' water rights. The appropriation or acquisition of insn-eam flow water
rights by the Forest Service is contrary to Colorado law, which provides that no person or entity .
other than the Colorado Water Conservation Board (CWCB) sh.a!l be granted a decree
adjudicating a right to water or interestS in water for instream flows in a stream channel between
specific points, or for natural surface water levels or volumes for natural lakes, for any pUIJlose
whatsoever. ~ 37-92-102(3), C.RS. (1999).

However, that same provision invites federal agencies to participate in and rely on the
State's instream flow program by directing the eWeB to request instream flow
recommendations from the U.S. Deparonent of Agriculture and the U.S. Deparonent of the
Interior. The CWCB has been eal1:er to work with government agencies such as the Forest
Service to appropriate or acquire water rights. An outstanding example of this cooperative
approach occurred in the White River National Forest, where the CWCB, working closely with
Forest Service personnel, appropriated water tights for all unappropriated flows in Dead Horse
Creek and its east and weS! forks and for the entire volume of Hanging Lake. Moreover, the
CWCB presently holds water rights protecting 1,169 stream miles and 138 natural lakes in the
White River National ForesL See Greg Walcher's comments to you on behalf of the State of
Colorado dated December 28, 1999.

By contra.,,'t, the ForeS! Service's independent application for an appropriative instream
flow right on East Middle Creek in the Rio Grande National Forest met with determined
opposition. The CWCB filed a similar application, and the Forest Service's application will be
dismissed as part of the Division 3 settlement of the Forest Service reserved water right claims.

The Forest Service's fish and wildlife habitat objectives are consistent with the CWCB's .
mandate to preserve the natural environment to a. reasonable degree. In light of past experience,
the management plan should encourage a collaborative effort by directing Forest Service
personnel to rely on the State's instream flow program to secure and protect jn,,--n:eam flow water
rights to the maximum extent possible.

Special-use authorizations. I do not have to tell you how contentious this issue is. In
1996, P.L. 104-127 g 389(d)(3) created a Federal Water Rights Task Force specifically in
response to the controversy in Colorado OVer the ForeS! Service's attempt to use its permitting
authority to require water users to relinquish a part of their water supply to provide water for
secondary national fareS! purposes. The Task Force held hearings across the weS! and in
Washington D.C., received oral and written testimony, and discussed alternatives. In its report
dated August 25,1997, the Task Force concll.lded:

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

(2) Decrees entered in McCarran Amendment water rights
adjudications are intended to res1.llt in a binding allocation of the
rights to the use of water for federal and non-federal purposes,

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