Colorado Wilderness Bill Revolutionizes Water Rules

U.S. Rep. Diana DeGette’s (D-Colo.) proposed Colorado Wilderness Act of 2007 will if passed follow some lightly legal trails by forcing the federal government to knuckle under to state water law in the areas covered by the legislation.

DeGette is introducing a bill in Congress to designate 1.65 new acres of mostly Bureau of Land Management land in Colorado as federally protected wilderness.

Previous federal wilderness legislation came armed with what are known as federal reserved water rights. This meant that if the federal government wanted to claim a water right from streams emerging in or flowing through a wilderness area, it dated those rights from the time of the creation of the federal land on which it was located. This was usually well before there were even states in the West to set aside water rights.  Since state water law calls for “first-in-time, first-in-right,” wilderness designation would give the federal government held a big hammer in the water-challenged region.
But, DeGette says:

“The legislation features new water rights legislation adopting language similar to water language included in the establishment of the Great Sand Dunes National Park. The language states that the federal government must file all water rights claims within the state of Colorado water rights system and abide by all Colorado water laws and regulations.

But Great Sand Dunes covers only about 150,000 acres, not 1.65 million of the wilderness proposal.

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David Getches

At a press conference announcing the new proposal at Confluence Park on the Platte River in Denver on September 12, University of Colorado Law School Dean David Getches said:

“Coloradans … recognize the essential role that water plays in ensuring the wild character of those places. At the same time we have in Colorado the desire to maintain the future sustainability of cities and farms which require water.

“The DeGette bill insures that there is a custom-tailored mechanism for protecting water rights …I absolutely guarantees that no existing water rights will be interfered with by the establishment of wilderness areas. And it requires the federal government to come in to our water courts to claim the water that’s required to protect the wilderness character of these areas.”

DeGette calls this a “significant compromise,” which is understating the issue. The federal government and most environmental groups have been reluctant in past wilderness fights to give up the federal water rights priority, precisely because it does allow for control of development in and near the designated area.

“We do still care about it,” says Colorado Environmental Coalition field inventory director Kurt Kunkle, “but we’re sort of running up against a wall in gaining federal water rights. It’s harder and harder to pass a wilderness bill that has a water right for the federal government.

“So we’re becoming increasingly creative in finding ways to protect the water within the wilderness area without getting the feds involved, either routing the feds through the state or having the state file for wilderness water rights. The state filing is not possible right now, but our bigger thinkers on water are trying to figure out how to make sure the wilderness has water.”

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Dan Whipple

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