The Colorado Water Division 1 Water Rights trial was one of the most significant
federal reserved instream flow water rights cases to occur since the Supreme Court
of the United States ruled in the case of United States v. New Mexico in 1978. In
Water Division 1, the United States filed federal claims for channel maintenance
instream flows based on the Organic Act interpretation of favorable conditions of
water flows. These claims to instream flows were challenged by the State of Colorado
and water conservancy districts in northern Colorado that divert water from national
forests.
The United States claimed it needed to keep a certain amount of water in the headwater
streams of the Laramie and South Platte Rivers on the Arapahoe, Roosevelt, Pike,
and San Isabel National Forests to protect stream channels and timber. Opponents
feared future development of water storage projects within the National Forests would
be nearly impossible if channel maintenance instream water rights were granted.
The case, which began in 1976, went to trial in 1991 and was decided in 1993. During
the year-long trial the judge heard from 49 expert witnesses and evaluated 1,500
exhibits. The case was unusual in that more than one half of the testimony dealt
with the highly technical sciences of hydrology, geomorphology, and sediment transport.
A recent publication by the Rocky Mountain Station (General Technical Report RM-GTR-270),
Summary of the Technical Testimony in the Colorado Water Division 1 Trial, summarizes
the technical data and information pertaining to the disciplines of geomorphology,
hydrology, and sediment transport mechanics presented to the court.
Nancy Gordon, senior co-author of the book Stream Hydrology: An Introduction for
Ecologists, read more than 15,000 pages of court transcripts to prepare the summary.
A major purpose of the document is to summarize the large amount of technical testimony
about fluvial geomorphology, hydrology, and sediment transport mechanics. The summary
discusses channel formation and maintenance, as viewed by scientists with differing
opinions, and allows readers to form their own judgment about the technical merit
or validity of differing viewpoints.
The publication is also intended to help managers and scientists understand how one
experienced water court judge viewed the testimony and technical evidence presented.
By highlighting some of the strengths and weaknesses, readers can learn important
lessons and hopefully use that knowledge to make future instream flow quantification
efforts more understandable and compelling in a legal framework.
The technical summary is prepared in two parts:
1. An Executive Summary (RM-GTR-270a, 4 pages) intended primarily for managers which
summarizes the history of federal reserved water rights, outlines the major issues
argued in the case, and presents the court's decision.
2. The Summary of Technical Testimony in the Colorado Water Division 1 Trial (RM-GTR-270,
140 pages) intended for those interested in a detailed understanding of the case
and its technical arguments. It includes sections about:
In his ruling, Judge Behrman recognized that reserved water rights of the United
States include channel maintenance purposes. However, with respect to specific claims,
Judge Behrman concluded that the United States failed to show that the reserved water
rights claimed are necessary to preserve the timber or to secure favorable water
flows for private and public uses under state law and that the United States failed
to establish the minimum amount of water needed.
The court, however, granted the United States reserved water rights for administrative
sites and fire-fighting purposes and suggested that the Forest Service use its special
use permitting authority to control water diversions within the National Forests
in lieu of obtaining water rights.
