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" 1'c,J ;e" I..t.. c,. L,I _" . . OUllli~""" 2 611. WA TER RESOURCES BULUTIN AMERICAN WATER RESOURCES ASSOCIATION FEBRUARY 1985 VOL 21;NO. 1 DINOSAUR NATIONAL MONUMENT: THE EVOLUTION OF A FEDERAL RESERVED WATER RIGHT' N. Jay Bassin' ABSTRACT: DinoSaur National Monument. in northwestern Colorado, has become a test ease in the establishment of a federal resef\l'w Water right to instream flows. For the rust time, the Interior Department Was forced to rigorously defend its claims in a watershed where the federaJ government did not control the upstream reaches. Inadequate qUantification of minimum flow requirements, c::ourt orders. and an apparent Congreasional ban on the spending of Water Resources Pro- gram Cunds by the Park Service to quantify its Water right$ have already placed the Service in a difficult position to protect instream flows fOJ: maintaining the ecological integrity of the Monument. As late as 1983, administrators of the Park Service were divided over their legal strategy. many wanting to pursue a policy of claiming "natural, historic" flows n.ther than "min\mum" {lows. The conditional right to in~treaJl\ flows granted to the Park Service in 1978 was subject to quantification within five yeaJ5. That deadline has been extended, but it is not likely that the case wilJ reach final settlement Lhis decade. Until the design and conduct of federal water rights quantifications better integrate public policy and law with science. the principle lesson from Dinosaur may have to be repeated. (KEY TERMS: water rights; instream now; Co\ora6o River Basin; water policy; Yampa River; \Vater resource management.) INTRODUCTION Dinosaur National Monument, 850 square kilometers of ruggedly spectacular canyons straddling the border between Colorado and Utah, was established by Presidential Proclama- tion in 1915 to protect a dinosaur fossil quarry near the con- fluence of the Green and Yampa Rivers. In 1938, the Monu- ment's boundaries were significantly expanded beyond the original dinosaur fossil quarry in order to protect the major drainages of the Yampa and Green Rive". The Monument is now a favored area for adventuresome white-water boaters. The Yampa within Dinosaur is also the critical habitat for four species of endangered fish. -----::::-1 Since 1974, Dinosaur,,~ Mexic'). has been the focus for a protracted struggle Over theTighls to water nowing through its canyons. Thirty.five major reservoirs have been proposed for the Yampa River Basin, with a combined total storage that is 141 percent of the mean annual outflow (Adams, et al., 1983). Ironically, the sharpest confrontations over the fate of the River have occurred, not between federal and state governments, but between the U.S. Department of Justice and various elements of the U.S. Department of the In- terior. The National Park Service (NPS) organic act of 1916 (39 Stat. 535) established as the principal management goal of the Service, H. . . to conserve the scenery and the natural and historic objects and the wild life therein. . . in such a manner and by such means as will leave them unimpaired for the en- joyment of future generations." Since at least 1937, Congress recognized the fundamental need to protect waler rights asso- ciated with units of the National Park System (Public Law 74-741). WATER RIGHTS The McCarran Amendment to the Act of July 10, 1952 (43 USC 666a) granted to the States the right to join federal agencies in slate courts for the purpose of adjudicating water rights. By waiving federal sovereign immunity, the law expli- citly recognized the authority of the states in the management of water rights. Congress' logic for this act was sound. Under the appropriation doctrine practiced in the West, basin-wide allocations of water quantity must be accurately established. Without the participation of the federal government in general adjudications, a significant component of the total appro- priated water would be unmeasured and unaccounted for. The U.S. Supreme Court confirmed the general applicability of the McCarran Amendmenl to federal reserved water rights in 1971 (U.S. v Eagle County, Colorado, 401 US 520), and in 1978 held that the Amendment waived the United States' sovereign immunity for all water rights (U.S. v New Mexico, 438 US 696). In 1967, Colorado initiated a general water rights adjudica- zion covering most of the state, and the NPS (represented by its Rocky Mountain Regional Office in Denver) was joined in ]974 as a defendent for Dinosaur National Monument as part of ColoJ3do Water Division 6. As a practical matter, the NPS J 'Paper No.1S410l of the Water Resources Bullerin. Discussions are open until October 1, 1985.. . . . 2Environmental Management Support, 95t4 Midwood Road, Silver SpriJ1g, Maryland 20910 (formerly Chief, Water Resource5 DiVISion, National Park :ervice, Washington, D.C.). 145 WATER RESOURCES BULLETIN