23G

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

federal lands and replaced them with a single grant of authority to the Secretaries of Agriculture
and the Interior to "grant, issue, or renew rights -of -way over, upon, under, or through" public and
National Forest Lands. 43 U.S.C. § 1761(a). Congress' grant of authority included the
obligation to include terms and conditions in each right -of -way which will, inter alia, "minimize
damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the
environment." 43 U.S.C. § 1765(a). The Forest Service's exercise of its regulatory authority to
impose bypass flows as a condition on the use of National Forest land does not constitute the
assertion of a water right.
The argument that imposition of bypass flows implicates or conflicts with state water
rights has been rejected by the Supreme Court in PUD No 1 v. Washing Dept. of Ecology, 511
U.S. 700 (1994). In that case, PUD No. 1 argued that a minimum instream flow requirement
imposed pursuant to the federal Clean Water Act ran afoul of disclaimers provided in that act
which preserved the state's authority to allocate water rights.' Id. at 720. The Court rejected that
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argument, holding that the disclaimers "preserve the authority of each State to allocate water
quantity as between users," but did not limit the scope of federal regulation (in that case pollution
controls) that may be imposed on users with water rights obtained under state law. In doing so,
the Court recognized that the regulatory action under federal law (minimum stream flow
requirements) did not interfere with the state allocation because it neither "reflected nor
5 The disclaimers in the CWA are similar to the savings clauses in § 701(g) of FLPMA. Section
101(g) of the CWA provides: "the authority of each State to allocate quantities of water within its
jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter." 33 U.S.C. §
1251(g) Similarly, § 510(2) provides that nothing in the CWA shall "be construed as impairing or in any
manner affecting any right or jurisdiction of the States with respect to the waters ... of such States." 33
U.S.C. § 1370.
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