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<br />" <br /> <br />ELS <br /> <br />003L8 <br /> <br />Dialogue <br /> <br />Environmental Law Society . School of Law . University of Colorado . Boulder 80309-0401 <br /> <br />Issue 2 <br /> <br />March, 1987 <br /> <br />FEDERAL RESERVED WATER RIGHTS: <br />THE EVOLVING DEBATE <br /> <br />Introduction <br /> <br />The effects of federal reserved water rights on the administration and <br />allocation of waler in Colorado and other Western Stales are a <br />Source of controversy. and continue to be debated in legal and <br />political forums. While atlention is often focused on judicial <br />opinions shaping the legal doctrine of federal rcserved waler rights, <br />the issue has grown to substantial dimensions in the political <br />forum. In particular, me fate of wildemess legislation in Congress <br />balances on federal reserved waler rights issues and the showdown <br />between those who advocale the beneficial aspects of federal <br />reserved rights and those who view federal reserved waler rights as a <br />threat to Stale-allocaled water rights having historic supremacy. <br />Therefore, an understanding of the issue requires that the political <br />and legal aspects of the federal reserved waler rights doctrine be <br />examined togemer. <br /> <br />In recognition of the importance of these issues and the need for <br /> <br />infonned commentary. the University of Colorado School of uw, <br />Environmental Law Society (ELS) is publishing the following two <br />essays. An important pan of the ELS mission is to fosler belter <br />public understanding of environmental law issues. In this spiril, <br />these essays present opposing viewpoints. writlen by authors who <br />are lawyers involved in federal reserved water rights litigation in <br />Colorado. <br /> <br />Timothy I. Bealen (B.A.. t977, Colorado College: 1.0.. 1980. University <br />of Colorado) is involved with state couI1 litigation of federal and stale <br />water law and special district law wi.th the rum of Moses, Wiltemy~r. <br />Harrison & WOodrulT, in Boulder, Colorado. Lori Poner (ll.A.. 1975, <br />M.A., 1977, University of lllinois; J.D., 1980, Harvard) is involved with <br />slate and federal litigation of water and environmental issues as managing <br />anomey of the Rocky Mountain Office of the Sierra Club Legal Defense <br />fWld in Denver, Colorado. <br /> <br />Federal Reserved Water Rights and <br />Wilderness Preservation: Escaping <br />the Confines of Consumptive Use <br />by Lori Potter* <br />Sierra Club Legal Defense Fund <br /> <br />In November. 1985, the U.S. District Court for Colorado declared <br />in Sierra Club v. Block lhat designated wildemess areas have such <br />waler rights as are necessary CO fulfill the purposes for which <br />wildemess was reserved by Congress. \ Fnr from being an <br />unprecedented new developmen~ the court's declaration of <br />wildemess reserved rights followed well,established U.S. Supreme <br />Court doctrine. The ruling also finds considerable support in <br />weslern staleS' caselaw applying that doctrine.2 Despile that rum <br />foundation, however, the issue has been comrover.;ia1 within the <br />water development community. <br /> <br />The controversy over this particular species of water righl has its <br />roots in the resistance to a very fundamental, ongoing change in <br />the complexion of weslern waler law. Over the past 10-15 years, <br />weslem water law has moved from its historic Sl3l1Ce, which <br />recognized only consumptive uses of waler as legally pennissible <br />uses, 10 now sanction preservation and instream uses as beneficial <br />uses as well.' Agricultural, industrial. and municipal waler users <br />have worked to limit the scope and effects of this change. Thus. <br /> <br />(CDIIJ~d 0,. Pag~ 2) <br />-1- <br /> <br />~oE."L <br />