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Page 3 White River National Forest Management Plan Comments February 18,2000 have caused significant losses from several perspectives. The initial investment in these water supplies would be lost and the replacement supplies, if available at all, would be significantly more expensive to develop and undoubtedly result in additional environmental impacts. Further, the present proposal to require the bypass of water from historical structures on forest lands would fail to achieve the WRNF's stated goal for the bypassed water. A special use permit bypass requirement would not create a legal water right in Colorado. Consequently, water bypassed would simply be available for diversion by the next downstream junior water right holder. Unless the WRNF commits to employing Colorado's instream water rights' adjudication system to accomplish its stated Goal 1.10, the State Engineer and the local water commissioners would not protect that bypassed water from downstream diversions. What the USFS would accomplish by imposing by- pass flow requirements on special use permits is lengthy, contentious, and expensive litigation. The USFS cannot obtain legally cognizable "water rights" for "instream flows" as stated in Goal 1.10. The Forest Service's claim for reserved instream flow rights for the White River National Forest' was litigated and decided in proceedings that culminated in the decision in Denver v. United States, 656 P.2d 1 (Colo. 1983). The Colorado Supreme Court held that USFS does not have reserved instream flow rights under the Organic Act of 1897 for purposes of watershed and timber protection and that no reserved rights for those forests arise from the Multiple-Use Sustained Yield Act of 1960 for "secondary" purposes. 656 P.2d at 22-26. Those holdings are binding on the United States in regard to the WRNF and the other Colorado forests that were at issue, notwithstanding that you continue to assert MUSY Act reserved rights claims in Idaho's Snake River Basin Adjudication. The doctrine of res judicata coupled with the McCarran Amendment, 43 U.S .C. ~ 666, preclude the United States from now asserting any legal entitlement to use water inconsistent with its lack of legal authority to obtain such uses as adjudicated in Denver v. U.S. The land management authorities contained in NFMA and FLPMA do not constitute land "reservations" which could imply reserved rights. Consequently, to obtain "water rights" which would be protectable under Colorado' s priority system/ the USFS should acquire interests in water acceptable to the Colorado Water Conservation Board which the Board can convert to instream flow rights pursuant to its exclusive I And for several other Colorado national forests: Arapaho, Grand Mesa, Gunnison, Monti.LaSa), Routt, and Uncompahgre. See 656 P.2d at 5-6. 2 C.R.S. ~ 37-92-103(12) defines the term "water right" as "...a right to use in accordance with its priority a cenain portion of the waters of the state by reason of the appropriation of the same."