WSPC00554

• File Number: 8080.400
• Description: Sierra Club vs. Department of Agriculture ‎(Lyng, Yeutter, other names)‎
• Date: 9/22/1987
• Title: Report on Methods for Protecting Wilderness Water Resources on Lands in Colorado - related material to Sierra Club vs. Dept of Ag.
• Water Supply Pro - Doc Type: Publication

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Under Forest Service policy, however, it is not necessary to assert
such a claim if a wilderness encompasses all of the headwaters, or
where there are only NFS lands upstream of the wilderness, since such
topographical circumstances combined with the Wilderness Act provide
special protection to those areas. For those wilderness areas with
non-NFS lands within the wilderness boundary or upstream of the
wilderness, the Forest Service will consider recommending that the
Department of Justice claim a Federal reserved wilderness water right
if there is a risk that, without the protection of such a water right,
a water development will be implemented to the detriment of the
related wilderness values.

Risk is evaluated in terms of the probability of the withdrawal of
water for consumptive uses or storage on site or the probability of
diversion of water out of the drainage that would be harmful to
wilderness purpose, which generally means having a noticeable, perma-
nent effect on the natural ecosystem or upon the recreational, scenic,
scientific, conservation, educational or historical values of the
wilderness. The evaluation of risk. which is made with regard to
specific sites within a specific wilderness, will include considera-
tion of the type of potential development, engineering and economic
feasibility, access, land ownership patterns, and local development
trends.

Aside from any legal uncertainty and the attendant litigative risks in
other judisdictions regarding the existence of wilderness water
rights, the Forest Service's reluctance to assert Federal reserved
water rights for wilderness in circumstances other than those des-
cribed above is based in large part on the practical difficulty and
high cost that such litigation would entail. The character of the
wilderness areas is the product of innumerable interrelated natural
components which do not lend themselves to easy numerical definition.
Measuring the precise amount of water found in natural lakes or ponds,
or in seeps or springs, or trickling from the myriad of tiny streams
in the highest reaches of the wilderness area will be extremely diffi-
cult. Further, sophisticated measuring devices and other necessary
technical implements. like other indicia of man, are, and have been,
absent from wilderness areas, so historic baseline data is not avail-
able.

It is possible for the Forest Service to identify the specific wilder-
ness values other than natural ecosystem preservation. such as primi-
tive recreation, fish and wildlife habitat protection, preservation of
any specific features of scientific, educational or cultural value,
and to attempt to quantify the amounts of water needed to protect
those values. The total of those amounts would represent a quantity
needed to achieve wilderness protection, but mayor may not neces-
sarily provide for natural ecosystem protection. While this method