23G

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

winter months.
After issuance of the original permit, final regulations implementing the Federal Land
Policy and Management Act (FLPMA) were promulgated. These regulations, administered by
the Forest Service, include the requirement that "[each special use authorization must contain: (I)
teens and conditions which will: (A) Carry out the purposes of applicable statutes and rules and
regulations issued thereunder; [and] (B) Minimize damage to scenic and esthetic values and fish
and wildlife habitat and otherwise protect the environment ...." 36 C.F.R. § 251.56(a).
Consistent with this regulatory requirement, the Forest Plan for the Arapaho and Roosevelt
National Forests provides that "[h]abitat for each [existing vertebrate] species on the forest will
be maintained at least at 40 percent or more of potential," and requires the Forest Service to
"manage waters capable of supporting self - sustaining trout populations to provide for those
populations." (AR -LD at 4587.) The Forest Plan also states one of its goals is to "recognize the
value of water for the future of western states." Id.
During the early 1990s, various applicants for and holders of expiring special use
authorizations for water development projects on Forest Service lands complained to Congress
that their activities should not be subject to the environmental protections of FLPMA, including
any requirements for bypass flows. Some members of Congress then approached then - Secretary
of Agriculture Edward Madigan with objections to the Forest Service's authonty to require
minimum bypass flows in authorizations for use of lands in the Arapahoe and Roosevelt National
Forests. Secretary Madigan responded by letter, assuring those members of Congress that "[t]he
Forest Service will reissue permits for existing water supply facilities for 20 years" and that
"[n]ew bypass flow requirements will not be imposed on existing water supply facilities"
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