Federal Reserved Rights to Instream Flows in the National Forests
By Diane E. Mcconkey
INTRODUCTION
Instream flows and their effects on stream channels have in recent years been a focal point for the work of Forest Service hydrologists. The study of changes in water flow has provided the basis for the federal government's newest claim to water rights in the national forests. This claim is the latest round in an ongoing struggle to determine the scope of the government's ability to use water on reserved federal lands.
Most of the debate concerns water rights in the West, where the states allocate what little water is available in accordance with the system of prior appropriation. Under this system, a person can acquire a water right by putting the water to beneficial use. The date of first use becomes the priority date for purposes of determining seniority among water users on a given stream. Consequently, junior users cannot interfere with those who have earlier priority dates.
Water rights created by appropriation are clearly ascertainable; no appropriator has a right to more water than the amount actually in use. Thus, each user can determine the extent of the more senior users' claims and can plan accordingly. Appropriators who fail to continue beneficial use of the water forfeit their rights.
The state prior appropriation systems are not, however, the last word on water rights. These systems have had to accommodate the growth of the judicially-created doctrine of federal reserved water rights. This doctrine holds that reservations of federal lands for particular purposes include reservations of water; it is based on the notion that in reserving federal land, Congress must implicitly have reserved sufficient water to fulfill the purposes of the reservation.
Federal reserved rights differ from appropriative rights in that they do not depend on beneficial use. They are created when the land is set aside, and they persist even in disuse. Because reserved water rights may lie dormant for decades, other water users may have difficulty in assessing competing claims on a given stream. Therefore, potential users may have to abandon some proposed uses because of uncertainty surrounding the volume of water available in the future.
Federal reserved rights for lands set aside during the nineteenth century can be particularly disruptive. The date on which Congress reserved the lands by statute acts as the priority date for purposes of determining relative seniority. Nineteenth-century reservations thus create water rights that are senior to any rights acquired this century under the system of prior appropriation.
The focus of this Note is on federal reservations of water in the national forests set aside by the Creative Act of 1891. In the context of national forests, the question has arisen whether the federal government may claim rights to instream flows. The Forest Service has repeatedly claimed that a minimum instream flow is necessary to fulfill the purposes of the forest reservations. In its view, control over instream flows is needed to ensure sufficient water for fish and other wildlife, to allow for recreation, and to maintain stream channels for flood control purposes. The Supreme Court rejected the first claim for minimum instream flows in United States v. New Mexico. However, recent studies performed by Forest Service hydrologists have allowed the government's claim to be recast in a manner that is consistent with the New Mexico decision. As a result, new questions have arisen as to the feasibility and desirability of claiming reserved rights in this context.
This Note describes the evolution of instream flow claims in the national forests. Part II reviews the Supreme Court's treatment of such claims in United States v. New Mexico, as well as the Court's identification of the two “primary purposes” of national forests. Part III traces the development of hydrology-based claims for instream flows in the Colorado courts. Part IV analyzes the most recent Colorado water court decision and discusses the Forest Service's future options for controlling the use of water flowing through the national forests.
Instream flows and their effects on stream channels have in recent years been a focal point for the work of Forest Service hydrologists. The study of changes in water flow has provided the basis for the federal government's newest claim to water rights in the national forests. This claim is the latest round in an ongoing struggle to determine the scope of the government's ability to use water on reserved federal lands.
Most of the debate concerns water rights in the West, where the states allocate what little water is available in accordance with the system of prior appropriation. Under this system, a person can acquire a water right by putting the water to beneficial use. The date of first use becomes the priority date for purposes of determining seniority among water users on a given stream. Consequently, junior users cannot interfere with those who have earlier priority dates.
Water rights created by appropriation are clearly ascertainable; no appropriator has a right to more water than the amount actually in use. Thus, each user can determine the extent of the more senior users' claims and can plan accordingly. Appropriators who fail to continue beneficial use of the water forfeit their rights.
The state prior appropriation systems are not, however, the last word on water rights. These systems have had to accommodate the growth of the judicially-created doctrine of federal reserved water rights. This doctrine holds that reservations of federal lands for particular purposes include reservations of water; it is based on the notion that in reserving federal land, Congress must implicitly have reserved sufficient water to fulfill the purposes of the reservation.
Federal reserved rights differ from appropriative rights in that they do not depend on beneficial use. They are created when the land is set aside, and they persist even in disuse. Because reserved water rights may lie dormant for decades, other water users may have difficulty in assessing competing claims on a given stream. Therefore, potential users may have to abandon some proposed uses because of uncertainty surrounding the volume of water available in the future.
Federal reserved rights for lands set aside during the nineteenth century can be particularly disruptive. The date on which Congress reserved the lands by statute acts as the priority date for purposes of determining relative seniority. Nineteenth-century reservations thus create water rights that are senior to any rights acquired this century under the system of prior appropriation.
The focus of this Note is on federal reservations of water in the national forests set aside by the Creative Act of 1891. In the context of national forests, the question has arisen whether the federal government may claim rights to instream flows. The Forest Service has repeatedly claimed that a minimum instream flow is necessary to fulfill the purposes of the forest reservations. In its view, control over instream flows is needed to ensure sufficient water for fish and other wildlife, to allow for recreation, and to maintain stream channels for flood control purposes. The Supreme Court rejected the first claim for minimum instream flows in United States v. New Mexico. However, recent studies performed by Forest Service hydrologists have allowed the government's claim to be recast in a manner that is consistent with the New Mexico decision. As a result, new questions have arisen as to the feasibility and desirability of claiming reserved rights in this context.
This Note describes the evolution of instream flow claims in the national forests. Part II reviews the Supreme Court's treatment of such claims in United States v. New Mexico, as well as the Court's identification of the two “primary purposes” of national forests. Part III traces the development of hydrology-based claims for instream flows in the Colorado courts. Part IV analyzes the most recent Colorado water court decision and discusses the Forest Service's future options for controlling the use of water flowing through the national forests.