Water for the Wilderness

Ever since 1908 it has been the law that whenever the government sets aside federal land for a specific purpose it implicitly claims enough water to carry out that purpose. The Winters decision of the Supreme Court that year dealt specifically with irrigation of crops on Indian reservations, but the doctrine of federal reserved water rights generally has been extended to other federal actions, like wildlife enhancement in a national forest.

But before it left office the Reagan Administration turned the Winters Doctrine on its ear and declared that creation of a federal wilderness area carried no federal reserved water right. The opin-ion first was issued by the Interior Department’s solicitor and then affirmed by then-Atty. Gen. Edwin Meese III, apparently to appease members of Congress from the West, where water rights are about as sacred as anything can be.

As soon as the Bush Administration has an Interior solicitor in place, it should overturn this capricious and improper opinion. And the Administration should do whatever it can to persuade the courts to uphold the concept of federal reserved rights in wilderness areas. A federal district judge in Colorado has done so, but that case is on appeal.

The direct effect of the Meese decision is negligible so far. In California, for instance, national forest and park wilderness areas tend to be located in the high mountains where the streams originate. In most cases there is no upstream user who can claim a superior water right that would threaten flows in or through the wilderness. As the Wilderness Society notes: “Wilderness areas are not a threat to existing water users in the West for a very simple reason: They do not consume water.”

But in the 1990s Congress will begin considering bills to create a series of major wilderness areas on Bureau of Land Management property, which generally is at lower elevations and conceivably vulnerable to upstream water claims. There is such a place now--the Beaver Dam Mountains Wilderness on BLM land on the border of southern Utah and northern Arizona. The proposed construction of dams upstream from the wilderness could interrupt stream flow. The Meese opinion does not have the force of law, but it prevents federal agencies from exercising reserved water rights in the wilds. The opinion has also caused considerable dispute and confusion in Congress over what water-rights language, if any, should be inserted in pending national forest and national park wilderness bills.

Ultimately this issue will have to be decided by the courts. Logic is on the side of extension of the Winters Doctrine to wilderness areas. The Wilderness Act of 1964 provided that such areas be protected and maintained in their natural condition. That is not possible if the water supply is interrupted or diverted. The Bush Administration should follow logic and the implied intent of the Wilderness Act and overturn the Meese opinion.