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Organizing for Endangered and Threatened Species Habitat Draft
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Organizing for Endangered and Threatened Species Habitat Draft
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Last modified
1/26/2010 4:36:29 PM
Creation date
5/28/2009 1:12:36 PM
Metadata
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Template:
Water Supply Protection
File Number
8461.100
Description
Adaptive Management Workgroup (PRRIP)
State
CO
Basin
South Platte
Water Division
1
Author
David M. Freeman, Ph.D,, Annie Epperson and Troy Lepper
Title
Organizing for Endangered and Threatened Species Habitat Draft
Water Supply Pro - Doc Type
Report/Study
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then decided to pursue federal reserved rights for instream uses, to fill the needs of fish, wildlife, <br />aesthetics and recreation. It began to seek, and require via the permit process, "by-pass" flows. <br />The Forest Service has required by-pass flows only 15 times in reviewing 8,000 special <br />use permits involving western water. Yet, these few efforts have been strongly opposed by the <br />states. Western water interests fought a two-part battle to limit the impact of Arizona v. <br />California finding: <br />1. they fought to insure; that reserved rights claims would be adjudicated in state <br />rather than Federal r,ourts, keeping; the issues before state judges, subject to state <br />elections, appointmf;nts and influences; <br />2. they brought sympal:hetic cases designed to narrow the application of Arizona v. <br />California. <br />Both strategies resulted in significant victories for water users. The Gila National Forest litigation <br />serves as a case in point. <br />At the time of the Arizona v. California decision (1963), several western states had <br />initiated general adjudications to cl.arify and settle water rights among users. The first of these to <br />go to the U.S. Supreme court was adjudication taking place on the Rio Mimbres, in the Gila <br />National Forest in New Mexico. hi these proceedings, the Forest Service claimed Federal reserve <br />rights for the Forest based on impli.ed reservation of water that took place when Congress passed <br />the Creative Act of 1891 and Orgaxuc Administration Act of 1897. In this case, U.S. v. New <br />Mexico, the Forest Service argued that instream flows were compatible with purposes of the <br />Creative and Organic Acts, and consistent with the Multiple Use and Sustained Yield Act <br />(Gillilan and Brown 1997). The special master appointed to the case found that water in the forest <br />was in fact being used for purposes claimed by the U.S., and that these uses fell under the scope of <br />reserved rights doctrine. However, the New Mexico District court rejected the findings of the <br />special master, as did the New Me:Kico Supreme eourt on appeal. That Supreme Court held that <br />the Forest Service could not claim Federal reserved water rights for instream purposes. This <br />ruling was upheld by the U.S. Supxeme Court in 1978, U.S. v. New Mexico. The Supreme Court <br />looked closely at the Organic Act and chose to construe its language narrowly; it concluded in a 5 <br />to 4 split decision that Congress only intended to establish national forests to improve and protect <br />those forests within their boundaries, for the purpose of securing favorable conditions of water <br />flows, and to furnish a continuous supply of timber. <br />The Gila National Forest rf;presented a major setback for the Forest Service. The negative <br />finding, from their standpoint, was an unhappy surprise, particularly given the strong suggestion <br />by the court in Arizona v. Cali.fornia fifteen years earlier that reserved rights doctrine could <br />provide water for national forest uses. In response to the court's interpretation of the Organic <br />Act's primary purpose, the Forest Service began to advance other rationales for making water <br />claims. New arguments took center stage that centered on water uses for fire fighting, fire <br />protection, flood, soil and erosion control. Most especially, the agency developed an argument <br />for instream flows based on the primary purpose of watershed protection and fluvial <br />geomorphology. Instream flows became necessary, in this modified line of argument, to transport <br />sediment downstream and to main.tain a viable stream channel, including meanders, reduced <br />35
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