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. . CON F IDE N T I A L MEMORANDUM TO: Bob Hyken, Assistant Attorney General Ruth Yeager, CWCB ~ December 5, 1985 FROM: DATE: SUBJECT: Scope of Work For Technical Studies, National Forest Reserved Rights Claims Before we determine a scope of work for the technical studies concerning the National Forest reserved rights claims, we need to have a clear idea of what we want to accomplish through these studies. The complete elimination of the Forest Service instream flow claims would rest of legal rather than on technical grounds. The technical studies are more for a second line of defense, assuming the general concept of instream flows for watershed protection is accepted in court. The Forest Service methodology can be critiqued on two levels: 1) the theory that a certain level of flow is necessary to maintain the characteristics of a stream channel, and 2) the application of this theory to actual streams to quantify the instream flow. I think that we need to have our experts look carefully at both the theory and the application, though they are more likely to be successful at finding problems in the application. One question we need to ask ourselves is what we are trying to accomplish through our experts. If the court has already accepted the concept of channel maintenance flows, a convincing critique of the Forest Service methodology will only succeed in delaying the reserved rights claims, not in eliminating them. If we have no alternative methodology to offer in place of the Forest Service method, the latter may be accepted by the court as the only means available for quantifying the flows. Therefore, I think it is important to have our experts not only critique the Forest Service method, but also to develop an alternative method. We need to bear in mind that any methodological changes recommended by our experts will not necessarily decrease the amount of water to be claimed by the Forest Service. However, our experts may be able to develop techniques of sediment management that would demonstrate ways in which water usage within the forest boundaries can be made compatible with watershed protection. The end result may be that water development can be allowed to reduce flows within the National Forest if certain mitigation measures are taken to handle the changes in sediment transport; this might function as a clarification of the present permitting process.