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<br /> <br />& FREEMAN <br /> <br />FAX NO, 3038324465 <br /> <br />p, 13 <br /> <br />. <br /> <br />PARTW <br />THE COLORADO "BYJ'ASS FLOW" CONTROVERSY, <br /> <br />In the early 1990's, the Arapal1o'Ropsevelt National Forest infonned the owners ofa <br />number of existing water facilities along the; Colorado From Range that they would have to renew <br />the federal land use authorizations for thoseJacilities. The Forest Service asserted that the <br />renewal of these authorizations would include conditions for requiring that certain minimum <br />amounts of water be left in the streams (by-pass tlows). The Forest Service defended the <br />conditions as required to achieve the nume~al standards for aquatic habitat protection adopted in <br />the 1984 Arapaho and Roosevelt Forest PJail. The Forest Service asserted that legal authority for <br />the imposition of bypass flow requirements was based in the Property Clause of the United States <br />Constitution, and delegated to it by Congren ill the 1897 Organic Administration Act, Multiple <br />Use and Sustained Yield Act, Federal Land policY and Management Act and the National Forest <br />Management Act. In particular, the Forest Service asserted that ~50S(a) ofFLPMA and 16 <br />U.S,C. ~ 1604(i) (NFMA) provided authorilY for the imposition of bypass flows. <br /> <br />. <br /> <br />The proposed bypass flow requirements were met with strong objeotions. The owners of <br />these facilities asserted that I) the Forest Seivice did not have the legal authority to require <br />bypass flows as.a condition of renewal of the land US!l authorizations, relying in part on ~701(g) <br />and (h) ofFLPMA; 2) some facilities would be physically incapable ofmaJcillg winter-time <br />releases; 3) the conditions would deprive ih~m of part of their decreed water rights and, <br />therefore, constitute a taking of property rights; and 4) the requirements were effectively federal <br />claims to water that were inconsistent with traditional federal deference to state water law and <br />with the requirement that federal claims to iIle use of water be asserted, quantified, and <br />adjudicated in McCarran Act proceedinas in Colorado. Some of the facilities were also asserted <br />to be authorized by pre-f1.PMA land use authorizations that did not need to be renewed. <br /> <br />A number of United States Senators ~d Congressmen wrote to the Secretat)' of <br />Agriculture and objel:!ed to the anempted imposition of bypass flow conditions on the basis that <br />these requirements would "violate the Jaw, [ipjure] vested property rights, [destroy] established <br />management practices, and ,,, result in the injplcimentstion of envirorunentally damaging <br />a1tematives , . ," The Secretary of Agriculture responded with a letter regarding the Forest <br />Service policy regarding the renewal ofland jlse authorizations for elCisting facilities, and <br />instructed the Forest Service to reissue the.p~ts in accordance with the policy outlined in the <br />leller. I. This policy statement was b8S4'd on lhe interpretation of The Organic Act as explained by <br />the United States Supreme Court in New Meifit:o, as well as the water rights savings and valid <br />existing righlS provisions ofFLPMA and NFMA. <br /> <br />In July 1994, the Forest Service issuep decisions on five of the seven facilities that were <br />initially a part oftros controversy (an alternat~ timetable for federal action had been agreed to by <br />the Forest Service and the owners oflWo of1he facilities). For the five facilities, the land use <br /> <br />11 S.. Appendix B. <br /> <br />. <br /> <br />Ul-l <br />