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<br />- <br />,1 , ' <br />( .. <br /> <br />003133 <br /> <br />ELS <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 EVOL VINO DEB A TE <br /> <br />Introduction <br /> <br />The effects of federal reserved water rights on the adminislIation and <br />allocation of water in Colorado and other Western Slates are a <br />source of controversy, and continue to be dcbated in legal and <br />political forums. While attention is often focused on judicial <br />opinions shaping the legal doctrine of federal reserved water rights, <br />the issue has grown to substantial dimensions in the political <br />forum. In particular, the fate of wilderness legislation in Congress <br />balances on federal reserved water rights issues and the showdown <br />between those who advocate the beneficial aspects of federal <br />reserved rights and those who view federal ,"served water rights as a <br />threat to Slate-allocated water rights having historic supremacy. <br />Therefore, an understanding of the issue requires that the political <br />and legal aspects of the federal reserved water rights doctrine be <br />examined together, <br /> <br />In recognition of the importance of these issues and the need for <br /> <br />go b -z.-- <br /> <br />informed commentary, the University of Colorado School of Law, <br />Environmental Law Society (ELS) is publishing the following two <br />essays. An imponant part of the ELS mission is to fOSler beller <br />public understanding of environmental law issues. In this spirit, <br />these essays present opposing viewpoints, written by authors who <br />are lawyers involved in federal reserved water rights litigation in <br />Colorado. <br /> <br />Timo<hy J. Beaton (B.A" 1977. Colorado College; J.D., 1980. University <br />of Colorado) is involved with state coun litigation of federal and state <br />water law and special district law with. th.e firm of Moses, Wittemycr, <br />Harrison & Woodruff. in Boulder. Colorado. Lori Potter (B.A., 1975. <br />M.A., 1977, University of illinois; J.D., 1980, Harvard) is involved with <br />state 3I1d federal litigation of water and environmental issues as managing <br />attorney of the Rocky Mountain Office of the Sierra Club Legal Defense <br />Fl.Dld in Denver, Colorado. <br /> <br />For Which the Bell Should Toll - <br />The Doctrine of Federal Reserved <br />Water Rights Has Run Its Course <br />By Timothy J. Beaton* <br />Moses, Wittemyer, Harrison & Woodruff, P.c. <br /> <br />Waler rights controversies in the western Slates are not passive, <br />academic controversies. Much of the West is arid, and all of man's <br />activities there require use of the scan:e water supply. Competition <br />for water remains fierce to this day, even to the point of physical <br />confrontation between neighbors. I When the federal government <br />began claiming water rights superior to waler rights held by <br />individuals. the hue and cry was loud and understandable. <br /> <br />The United StaleS' assertion of federal water rights principally has <br />been pursuant to the doctrine of implied reserved righlS. The <br />doctrine provides that: . <br /> <br />'" when the Federal Government withdraws its land from <br />the public domain and reserves it for a federal purpose, the <br />Government. by implication, reserves appurtenant water <br />then unappropriated 10 the extent needed to accomplish the <br />purpose of the reservation. In so doing the United Slates <br />acquires a reserved right in unappropriated water which <br />vests on <he date of the reservation and is superior to the <br />rights of future appropriators. ... The doctrine applies to <br />(Cnoui,,<uod n.. Pm,. 1\ <br />