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WESTERN STATES WATER . O ~ "'!. h',.., 'i J ,LJ..J j THE WEEKLYNEWSLETIER OF THE WESTERN STATES WATER COUNCIL Creekview Plaza, Suite A-201/942 East 7145 So. / Midvale. Utah 84047 / (801) 561-5300 / FAX (801) 255-9642 editor - Tony Willardson typist carrie curvin UTIGATlONIWATER RIGHTS Reserved Water Rights/Forest Service . The Colorado District Court for Water Division No. 1 has denied the Un~ed States' claims to reserved water rights for instream flows to provide channel maintenance in the Arapaho, Pike, Roosevelt, and San Isabel National Forests, but has acknowledged a right to water for fire-fighting purposes and for administrative s~es, In the Matter of...Aoolication...for Reserved Water Riahts in the Platte River..., Nos. W- 8439-76.... (Feb. 12, 1993). The federal government claimed that U.S. Forest Service withdrawals implic~ly reserved the appurtenant water necessary to maintain instream flows. The claims were based on the science of fluvial geomorphology. The issue was in~ially argued in the Colorado courts in the mid-1980s, but was not resolved. In 1987, the Colorado Supreme Court remanded the matter to the district court. After some delay and a lengthy trial, the district court recently handed down its decision. . The court found the case centered on the interpretation of the Creative Act of 1891 and the Organic Administration Act of 1897. It stressed that the purposes of the creation of national forests have been established by the U.S. Supreme Court, in United States v. New Mexico, as conserving water flows and furnishing a continuous supply of timber. The court quoted the Supreme Court as saying, 'Congress intended that waters would be reserved [for national forests] only where necessary to preserve the timber or to secure favorable water flows for private and public uses under slate law.' 'The term 'favorable water flows' was a considerable focus of the trial in this case,' the court said, stressing that irrigation and domestic use were principle purposes for maintaining such flows. chairman - Dave Kennedy executive director - Craig Bell The court asserted that the affect of granting the Un~ed States' claims would be to accentuate flood flows .in the springtime, which is 'Ihe exact opposite of what was desired by people whose thoughts on the subject were influential at the time of the enactment of the Creative and Organic Acts.' The court also noted that quantification of the requested reserved rights was at odds with the efficient use of waters from the forest for irrigation and domestic purposes and that there were alternative, less restrictive, methods of protecting the amount of water necessary to fuKiII the purposes of the national forest reservations. With respect to the nature of the streams in the forests, and the need to maintain channels to protect the streams, the court said the objectors to the Un~ed States' claims asserted that channel maintenance was irrelevant, while proponents said Congress intended the channels be maintained unimpaired. The court found 'Ihe truth is somewhere in between.' It noted. however, that 'unless the forests are converted into outdoor museums rather than places for use, work and recreation, processes which alter the natural environment will continue.... It is this court's view that channel maintenance is necessary to effectuate a purpose of the National Forests. But such maintenance is required only to a reasonable degree.' The court continued, ....although...evidence showed some changes in stream characteristics which may be...a result of diversions..., those changes did not seriously impair the integrity of the stream channels... [and] are well within the bounds which a reasonably informed person must have contemplated when diversions in the national forests were [first] allowed..... The court went on to explain that the scientific methodology underlying the Un~ed States' claims failed to identify the minimum flows necessary for channel maintenance. The court did, however, uphold federal claims for firefighting and administrative sites.