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<br />MAR-04-2003 TUE 09:56 AM TROUT WITWER & FREEMAN <br /> <br />FAX NO. 3038324465 <br /> <br />interpret the very same Act as is applied by the For~st Service. <br /> <br />The 1952 enactment of the McC~n Amendment, which waived sovereign immunity so <br />that federal claims to the use of water cO\lld be adjudicated and relative priorities established for <br />federal and non-federal water rights, asmp confirmed federal deference to state water allocation <br />systems. In fact, McCflITan was more th.n an e"pression of deference 10 state systems, as it was <br />intended to forCe federal asencies to obtliin water riglJts they deemed necessary to achieve federal <br />purposes so that these rights could be adi,nlnistered in,priority with non.federal water rights. <br />McCarran was therefore an explicit rejecilon of the anempts by federal agencies to control the use <br />of water irrespective of water rights Obtained under sfate law.'? <br /> <br />Beginning in 1960, with the Multiple Use and Sustained Yield Act, and then again in <br />1976, with the Federal Land Policy and Manasement Act and the National Forest Management <br />Act, Congress instiMed management prol;r&mS for public lands, including national forests, that <br />expanded the roles offederalland manas,rs beyond previous mandates. In doing so, Congress <br />again provided significant recognition of ~he states' rdle in water right matters and gave no <br />explicit instructions to federal land manaaers in conf1i!ll with the federal reeognition of water <br />rights created under state law. . <br /> <br />, <br />Nevertheless, the implementation pfthese new management programs, coupled with <br />passage of a series of environmentallaws,i pushed fedilralland managers toward analysis of water <br />resource needs for newly defined federa.! purpose.. For the Forest Service, this push came <br />primarily from developmllllt offorest pll\llS' Identifying perceived needs, the Forest Service found <br />Ihat surfaee water resources originating oil or passins through national forests in the West were, <br />in many instances, already allocated to an~ owned by ;olhers. Thus, a tension built between the <br />Forest Service's perceived need for additional water ~o aclUeve lIS newly defined management <br />objectives and state-recosnized water risllts previously granted for other purposes. <br /> <br />Frustrated by thll f~ct that federal ~ater rights must be exerci&ed in priority, and therefore <br />do not allow the Forest Service to control! the use of Water belonginllto senior water rights used <br />for non.federal purposes, the Forest Service has lUm~d 10 its resulatory authority in an attempt to <br />control the diversion and use of water owned by olhers. AI the same time, the Forest Service <br />appears to have concluded that water rights of all typ~s previously granted to users offorestlands <br />under Slate laws should be transferred to tl1e Forest S~rvice where state law allows direct fecleral <br />agency ownership of such rights. Both oflhese decisions were impelled by a perceived need to <br />directly control water resources to enlarg_ overaJll11$agement and control of National Forests, <br />and by Ihe desire to side-step previous allqcations of Water to non-federal purposes and entities. <br /> <br />17 L'"lledS,atelV. DIJlrlcICo'''lorE:agl.Co~my.40\ U.S. 520(1911). <br /> <br />II -.3 <br /> <br />) <br /> <br />p, 12 <br /> <br /> <br />. <br /> <br />. <br /> <br />. <br />