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<br />< <br /> <br />5. <br /> <br />Under current case law, are filings by an agency ofthe federal government for RISF <br />rights that are to be used within a federal land reserve permitted as long as the <br />federal agency files for such rights in accordance with Colorado 11lw? <br /> <br />e <br /> <br />RESPONSE: This is hyperbole and fear mongering. <br /> <br />. EW Memo overstates the concern. EW memo states, "since recreation is often <br />cited as a use of federally reserved land, the recreational use of the waters of the <br />streams within the federal reserve would be a credible assertion and could form <br />the basis for appropriation of a RISF right." EW Memo at 5. This is an absurd <br />assertion. The author has skipped entirely the state legal requirements for creation <br />ofa RD right. RD rights under Colorado statutes and the Fort Collins case are <br />only acquired by control of the water claimed via a manmade "structure or <br />device." City of Thornton v. City of Fort Collins, 830 P.2d 915,930 (Colo. <br />1992). Layer upon layer of federal land management and environmental statutes <br />and regulations direct the various federal land management agencies to preserve <br />the natural environment. Without having done an extended analysis of the federal <br />law involved, we doubt that federal law allows any federal land management <br />agency to install artificial structures and devices in the bed of a natural stream to <br />change and control the flow of that stream to the degree necessary to perfect a <br />water right under state law. Such actions would certainly be prohibited in <br />Wilderness Areas. Even if aUowed by federal law, such actions would probably <br />trigger NEP A, require environmental impact statements, and be cost prohibitive. e <br /> <br />. On the other hand, if federal agencies are allowed by federal law to finance and <br />build the necessary structures, i.e. make the required investment and do the <br />required work, then they probably could acquire the rights under state law. This is <br />not, however, a basis to change existing law on RD's. <br /> <br />Note the SEO's response to this qllestion: "Federal RISF water rights would be <br />administered in accordance with the decree, the priority system and available supplies." <br /> <br />6 <br /> <br />e <br />