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<br />. <br /> <br />~ <br /> <br />. <br /> <br />. <br /> <br />Question #3A: Does the Forest Service have the statutory authority to condition a Ditch Bill <br />- easement with bypass flow provisions? In considering this, note thatSectionl(c)(3)(B) of <br />P.L. 99-545, states: <br /> <br />"Nothing in this subsection shall be deemed to be an assertion by the United States of <br />. any right or claim with regard to the reservation, acquisition, or use of water. <br />Nothing in this subsection shall be deemed to confer on the Secretary of Agriculture <br />any power or authority to regulation or control in any manner the appropriation, <br />diversion, or use of water_for any purpose (nor to diminish any-such powel'.or <br />authority of such Secretary under applicable-law) or to require canveyance-or- <br />transfer to the United States of.any right or claim to the appropriation, diversion, or <br />use of water." - . <br /> <br />Short Answer: For the reasons set out in answer to Question 2A, the Forest Service has authority <br />under FLPMA to impose a bypass flow requirement as a condition in a Ditch Bill easement, <br />notwithstanding the quoted paragraph. The effect of the quoted paragraph isto disclaim any <br />legislative effect by the Ditch Bill amendment on the then-existing rights, claims, or regulatory <br />authority of the United States and the Secretary of Agriculture regarding water and uses of water. <br />In particular, the paragraph states that the new subsection being added to.FLPMA did not "confer <br />on the Secretary, . . nor diminish any such power or authority of such S.ecretary under applicable <br />law," .' <br /> <br />Discussion: . <br /> <br />In subparagraph 1761(c)(3)(B), the status quo with respect tothe Secretary's authority over the- <br />regulation, control, and use of water for any purpose - which includes irrigated agriculture -- was <br />expressly addressed and preserved by Congress. This subparagraph reads: <br /> <br />Nothing in this subsection shall be deemed to be an assertion by the United States <br />of any right or claim with regard to the reservation, acquisition, or use of water. <br />Nothing in this subsection shall be deemed to confer on the Secretary of <br />AgricultUre any power or authority to regulation or control in any manner the <br />appropriation, diversion, or use of water for any purpose (nor to diminish any such <br />power or authority of such Secretary under applicable law) or to require . <br />conveyance or transfer to the United States of any right or claim to the <br />appropriation, diversion;or use of water (ernphasis provided)'. <br /> <br />With this ianguage, Congress clearly stated that nothing in the "subsection"(i.e., the Ditch Bill) is <br />intended to alter the status quo of existing laws governing the. SecretaIy's authority to tegulate or <br />control in any manner the appropriation, diversion, or use of water for any purpose, which would <br />include the use of water for irrigated agriculture. This means that the Ditch Bill does not alter the <br />status quo of then-existing laws concerning the appropriation, diversion, or use of water from <br /> <br />8Section 1761 (c) <br /> <br />Page 10 of 14 <br />