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<br /> <br />FAX NO. 3038324465 <br /> <br />p, 15 <br /> <br />. <br /> <br />water right because title to the water right r~mains with the pemUttee draws a distinction without <br />a difference. Having title to a water right is'meaningless if the owner is not allowed to exercise <br />the right in accordance with its terms, i,e, time and place of diversion or storage, quantity, and <br />priority, <br /> <br />. <br /> <br />Likewise, the argument that a bypa~s flow requirement does not interfere with the <br />exercise ofa water right because the forest ;Service was not itself "seeking" or "claiming" a <br />"water right" fails the test of common Sen$e: and prior interpretations of public land laws. <br />Regardless of whether the Forest Service ch'ooses to label its demand for water a "water right," <br />the purpose of a bypass flow requiremetlt is 'to take water from the owner of a water right so that <br />it is available for use by the Forest Service tll anain National Forest purposes. Three different <br />Solicitors of the Interior. two serving in a P~mocrat Administration and the other in a Republican <br />Administration, have conceded that an atlell)pt to obtain water for federal purposes that is based <br />on FLPMA is in fact a "use of water" for whiCh a water right must be obtained and exercised in <br />priority, ,t SoHcllor of the Inlerior Coldiron also concluded that "The Court thus held [in <br />United States v. New Mexic(J and California v. Ulliled Slales] lhallhe Uniled Slates waler use <br />is limited until it reserves the water or complies with the various state laws lei appropriate Ihat <br />waler, in the same manner as any other in4ividual. ,," Finally, the anempl by lhe Forest Service <br />to evade the requirements and implications cif McCarran through the simple artifice of denying <br />that they are asserting a right to or making I use of water is identical to the unsuccessful anempt <br />by gravel pit owners in Colorado to "disavojv any wish 10 oblain a water right" despite the fact <br />Ihat they were clearly using water to the dolfiment of other water users.'~ ' <br /> <br />The argument that a bypass flow req~irement is not an interference with the exercise of a <br />watOl' right beeause the water can be divenefl at a later time or in a diiferent place also ignores <br />basic water law and Ihe reality of geography. Several examples iJlustrate the injurious effects of <br />bypass flows on water rights, Firsl, ifa federal agency imposes bypass flows on the operation oil <br />ditch or direct.f1ow water delivery structUre; the water remains undivened in the Stream and flows <br />past that 8truCture in order to fulfill the Farept Service's desired use. Because the water is <br />bypassed at the point of diversion and contiljues downStream, the ditch owner will not be able 10 <br />recover the bypassed water, reconvey it upstream to the diversion point, and place it to its <br />decreed, historical beneficial use, Contrary io Forest Service assenions, the bypassed water, once <br />convened to Ihe agency's preferred use, is often lost forever and no longer available for beneficial <br />use by itS owner. <br /> <br />Second, bypass flows imposed upon reservoirs have the effect of converting water storage <br /> <br />" s.. K",Iil; Op.. 861.D. 553 (1979). M.m CIp;. 88 I.D. 253 (1981). Coldiron Op. 88 !.D. 1055 (198]). <br /> <br />" Coldiron Op. 88 !.D. lOSS. 1062 (emph..i. ad~ed). <br /> <br />" See Three B.liJ Ranch A"""i.,.. v. Cach.,. Foud,., W.I.r U,"'. AS! 'n, 758 P.2d 164. 170 (Colo, 1988). and <br />Comments and Testimony 01 City of Thomlon, July 17; 1997. <br /> <br />. <br /> <br />m.l <br />