23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

control over the allocation and use of water. Intervenors further argue that these statutes also
limit the exercise of Forest Service authority by making it subject to valid existing rights such as
existing water rights and facilities. Finally, Intervenors assert that the use of bypass flow
requirements by federal agencies to obtain water for federal purposes is inconsistent with the
McCarran Amendment, 43 U.S.C. § 666, by which Congress established a unified and all -
inclusive method to allocate the use of water between federal and non - federal water uses,
including the riparian uses which Plaintiffs seek to protect in this case. Consequently,
Intervenors contend, the failure of the Forest Service to impose conditions beyond its legal
authority cannot provide the basis for Plaintiffs' claims that the Forest Service has violated
procedural or substantive requirements of law.
The Government Defendants contend that the Forest Service's authority to establish
bypass flows as a condition to the use of Forest Service land rests on two significant principles.
First, when the Forest Service requires bypass flows it is imposing a condition on the use of
federal land rather than asserting a water right. Second, a Colorado water right carries with it no
right to the use of federal land. Defendants argue that the Forest Service has broad regulatory
authority to impose conditions on the use of its land even when those conditions affect private
water rights. Defendant assert that this authority arises from three sources: (1) the Organic Act of
1897, which granted the agency broad authority to impose conditions on the occupancy and use
of National Forest land; (2) FLPMA, in which Congress granted the agency authority to issue and
condition rights -of -way on National Forest lands; and (3) the agency's proprietary capacity,
which also allows the agency to impose terms and conditions on the use of National Forest lands.
Similarly, Plaintiffs contend that the Forest Service has the authority to issue special -use permits
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