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<br />, <br /> <br />.' <br /> <br />Forest System lands by virtue of the Organic Administration, Act and FLPMA.IO This position by <br />the Forest Service and the Office of the General Counsel, however, is currently under challenge by <br />water users in Colorado who claim that bypass flows are inconsistent with the language in <br />FLPMA that requires all actions by the Secretary to be subject to valid existing rights. <br /> <br />Question #3B: If the Forest Service has the authority to condition a Ditch Bill easement with <br />bypass flow provisions, is there a point at which such a provision would be legally construed <br />as a taking, or partial taking, of the faciiity owner's water right? Is there any legal C <br />,difference between a bypass flow. requirement that would allow the facilftyowner.to divert <br />what amounts to 95% of hisllier water-right, versusanotherownerwho'wouldonly be .. <br />allowed to divert and use 50% (or less) of his /her water right? . <br /> <br />Short answer: The answer to tlllS question is extremely fact dependent. When, or if, a "taking" <br />might have occurred cannot be predicted at this time. More importantly, as discussed below, we <br />believe that there may be a statUtory limit on the agency's authority to ll1Pose bypass flow <br />conditions that will prevent the agency from reaching the "takings" threshold. The Secretary is <br />authorized under the "Ditch Bill" amendments to condition the use of the easements issued <br />thereunder to the extent that the conditions do not entirely preclude the purposes for which the <br />eaSement was granted. <br /> <br />, Discussion: <br /> <br />el <br /> <br />Your question asks whether regulation of a water diversion facility pennitted under a Ditch Bill <br />easement would be a taking of the water right if a bypass flow was imposed. While We believe <br />that the real issue under the Ditch Bill is the extent of agency authority, rather than a "taking" by <br />agency action, we will provide some general guidance. as to '''takings'' and bypass flow <br />requirements. . <br /> <br />A regulatory "taking" can occur when the government "takes" private property contrary to the <br />Fifth Amendment, which provides that "private property (shall not) be taken for public use, , <br />without just compensation." There is no set formula for determining when government action, <br />effects a "taking". A regulation of property may effect a "taking" of property if the regulation <br />either fails to substantially advance a legitimate governmental interest, or denies an owner <br />economically viable use of his land. See NoITan v. California Coastal Comm'n, 483 U.S. 825, <br />834 (1987); Agins v, City ofTiburon, 447 U.S, 255, 260 (1980). In the traditional analysis, the <br />courts look at the broader bundle of rights and do not find a "taking',' if only one particular portion <br />of the ownership interest was taken. Kevstone Coal Association v. DeBenedictis, 480 U.S. 470 <br />(1987). It should be noted, however, that there is a recent decision by the Court of Federal <br />ClaiJ:hs in Florida Rock Industries (FRI) v. U.S. which deviated from'the current Fifth <br />Amendment "takings" jurisprudence in this regard. In this case, the court found a "taking" when <br />