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I 003130 Pott~r, c..,;";"dfromPag.2 ,. Relaled 10 the principle of aniedation was a general concern about notice. The cases hold that a reserved right vests on !he dale of !he reservation by Congress or the President, regardless of whether competing approprialOrs had aclUaI notice of the rescrvation.21 In the case of wilderness designation, a ShOng case can be made that private and municipal water users had ample notice through Ille legislative process that the establishment of wilderness would have an impact on Waler resources. Federal legislation to set up a national wilderness preservation system was first introduced in 1956 and remained the foremost piece of environmental legislation on Congress' agenda until !he actual Wildemess Act passed in 1964. Since the great majority of wilderness candidate lands were in !he West. the Congressional delegations of lhe western StaleS worked very actively, both in commiuee and on the floor. to shape !he legislation. Congress held numerous field hearings in !he western states, as well as in Washington. From the beginning, the legislative proposals contained bans on waler projects within wilderness, foreshadowing a significant conso-aiHt on lhe prospects for divcrsions from high- elevation are<lS and on moving points of diversion into such areas. Further, the bills required water developers who wished 10 circumvent the ban to make a strict public interest showing. and to obtain an exemption from the Presidenl22 Water developers. panicularly cities with conditional waler rights in alpine areas, consulted with the Forest Service on its wilderness recommendations, testified at length, and took their cases for boundary changes or against wilderness designation 10 their elecled represematives.23 Some obtainerl panial exemptions.24 Thus. the legislative process likely gave water developers - particularly those with plans fo< nigh elevation diversion projects - conslrUctive notice of the constraints which wilderness would place on waterworks. In reality. such notice was probably at least as effective as the notice which field survey work and municipal resolutions give to competing water users in the more lraditional water rights contexl25 Thus, notice, :mtedation, and a fear of federal coun control were probably mere shibboleths. The genuine considcrations emerged as the political debate sharpened the issues. Senator Armsuong attempled 10 overrule the Block declaration with a rider altacl1erl1O S. 2916, the wilderness legislation he ino-oduced the month after ihe July, 1984, preliminary ruling. That rider provided that no act establishing wilderness in Colorado reserved any water rights. The rider applied reo-oactively 10 existing wilderness and prospectively not only to national forest wilderness but to park and BLM wilderness lands, as well. In hearings on Senator Armstrong's bill, the conservation community. the Forest Service. me Park Service, the State of Colorado, and Senator Hart Iestifierl against passage of wilderness legislation containing language abrogating wilderness waler rights. The bill died in commiltee. and no Colorado wilderness legislation has moverl since that time. In an effon 10 unlock that logjam. Senalor Hart and Representatives Hank Brown and Ken Kramer wrote 10 !he Colorado Department of Natural Resources in late 1985, asking its Director and the Slale Engineer to examine the conflicts between wilderness reserved rights and other uses. That request generaled an exhaustive compilation of water rights within and above existing and proposed wilderness. The Department's analysis of the data resulted in a conclusion that "there is little actual or potential conflict between existing or conditional water rights and any federal reserved rights that may be establisherl in existing or proposed wilderness areas on Colorado National Forests".26 Although DNR did oot analyze the BLM wilderness candidate areas, the letter acknowledged that "their generally lower locations would probably implicate more conflicts." The Colorado Waler Congress. which intervened against the Sierra Club in the Block litigation. reviewed DNR's analysis and replied to the Congressmen.27 ewes reply moved beyond the original shibboleths 10 reveal the fundamental basis for water developers' objections to wilderness reserved rights. Generally, the ewe objecterlto (I) the ability of wilderness reserved rights, no maUer how junior, to block a change in diversion point which would injure the wilderness; (2) the possible impacts of BLM wilderness designation; and (3) the fact that "recognition of a federal reserved right in wilderness areas would inhibit high mounlain storage projects which are both needed and extremely desirable. due to their low evaporation potential." The ewe positerl that the state's inso-eam flow program made federal reserved rights unnecessary. Reliance upon a strictly state-managed program, such as that run by !he Colorado Water Conservation Board, runs afoul of some imponant principles. First, the federal land manager must retain its role as the party ultimately responsible for wilderness water protection. ihe Forest Service or other agency has irrevocable duties under the Wilderness Act. but the CWCB has nO similar obligation to preserve wilderness or to put wilderness values paramounL InslUd. \he CWCB has connicting duties to participate in the State's water development The land,managing agency must bave standing to protect wilderness water rights in coun and must be accountable to wilderness users in doing so. /' A wilderness water right has a critical legal function. Without this right, the land manager has no standing to protect wilderness water .flows against upslream diversions or augmenled uses, against water right changes from points below to points above wilderness, or against water development on inholdings. A water rignt enables the land manager to oppose wilderness-threatening water projects whose rights have not been diligenUy developed. The extracr~ prolections of the Wilderness Act would be a nullity if the land manager hadn't the power to go to water court to protect wilderness water supplies. \ \ I Second, the federal land manager must use an approprumon methodology more embracing of wilderness values than is the stale's. While the CWCB program historically has approprialed only such flows as are sufficient to keep fish alive, the wilderness manager must protect enough water to preserve all wilderness values. including wildlife, recreational uses, aesthetics, so-eam channel integrity, and adjacent wetlands. Such thorough protection requires consideration of the waler in the ground. as well as what is in the stream. Behind the wilderness water right doctrine is the notion that wilderness, like other land which benefits from wau:r, should nave the right to preserve stream conditions as they were when the right was acquired. This is a basic Ienet of western water law, yet one which wilderness water right opponents would deny to the (CCHJJ.Uuud 0", Pa!~ 6) -5-