23G

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

established" a water right. Id. at 720 -21
Like the CWA certification required in PUD No 1, the authorization for the use of
federal land required in this case represents a federal action that is a prerequisite to the use of a
water right obtained under state law. A review of the foregoing authorities convinces this Court
that, on the rare occasions when bypass flows are required as a condition to the use of federal
lands, they neither reflect nor establish a water right; rather, they merely address the nature of the
use to which a water right might be put once the right is obtained from the State. Id. at 721.
Thus, pursuant to its regulatory authority, the Forest Service could have imposed bypass flows as
a condition to the renewal of WSSC's authorization for Long Draw Reservoir.
C. FEDERAL LAND AND POLICY MANAGEMENT ACT
In his Record of Decision, Supervisor Underwood stated,
Section 505 of FLPMA, requires me to protect the public interest in the lands
traversed by the right -of -way or adjacent thereto. I considered that responsibility,
and I conclude that I have the authority to impose winter bypass flows below the
dam to protect the Park. However, in my discretion, I have balanced the public's
interest in water facilities and the environment.
(AR -LD at 4603.)
Plaintiffs argue that Defendants' decision to grant the Long Draw Easement without
requiring the maintenance of minimum bypass flows was arbitrary, capricious, an abuse of
discretion and not in accordance with FLPMA. Specifically, Plaintiffs argue that the easement
does not carry out the purposes of FLPMA and will cause significant damage to fish and wildlife.
Plaintiffs maintain that the Forest Service does not have authorization to balance local business
concerns with the protection of the environment. Plaintiffs further contend that FLPMA's
requirement that rights -of -way include terms and conditions that will "minimize damage to
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