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<br /> <br />. <br /> <br />. <br /> <br />. <br /> <br /> <br />EMAN <br /> <br />FAX NO. 3038324465 <br /> <br />P. 17 <br /> <br />enough water to satist)! all demands, the waler rights admiruslralors must be able to curtail junior <br />uses in order to ensure that the water is available for senior water rights. If the Forest Service has <br />the authority to impose bypass flow conditions on senior water rights, State water rights <br />adrrunistrators will be unable to ensure that 'lVater is delivered in accordance with existing <br />priorities, In some cases, the imposition of ~ bypass lIow condition simply takes water from a <br />senior water user and makes it available to'a)unior water right that is not entitled to the water. <br /> <br />In an actual example which occulTed! in Colorado, downstream junior appropriators <br />diverted the water which the Forest Service required to be bypassed by the owner of an upstream <br />senior ditch and reservoir located on Forest land. TlIe interception of the bypassed water occurs <br />just a few miles downstream of the bypass, and many miles above the stream reach which the <br />bypass flow allegedly would protect.:' Comiequently, the assertion of bypass flow authority took <br />water from the ditch company that owned .iI,' gave it. to a non-federal party who would not have <br />otherwise received this water, and left the feperal desire for water unmet. As was conl;eded by <br />the Department of Agriculture's Office ofG;neral Counsel, "[aJfter the water is required to be <br />bypassed &: left in the Slfearn at that identiti~ point, the FS has no continued right to maintain the <br />water in the strewn downstream, ,. We do*'t have a protecrable water right, over a given stream <br />segment, with a bypass flow.. . (W]e may ~e able to gel a junior water right for a stream stretch, <br />hut this should be discussed at a site speciflc;basis to determine whether it offers the FS any <br />advantage."u This statement concedes thaI pypass flows cannot keep water in the strewn, as they <br />are not capable of being administered in priojity by state water rights administration systems, <br /> <br />As the Direcror ofth. Colorado WatFr Conservation Board explained, after observing that <br />Colorado's instreant flow program prOvides protection for "over 8,000 miles ohtreams and 486 <br />lakes statewide" in a manner that protects water rights: <br /> <br />A tool which the Forest Service hilS ittempted to use to sectlre resource protection in <br />Colorado which does w:u work is the: bypass requirement. Federally mandated by-pass <br />flows do little, if anything to protect ihe natural envirorunent. They do, however, have <br />significant negative effects on the prqperlY rights of others. By-pass flows reduce the <br />yield of the structure on which they ale imposed, thus resulting in a net loss to the water <br />right owner, By-pass !lows cannot b~ administered past the point of release as they carry <br />no priority, and become available to ~he next downstream diverter in priority, This may <br />result in a senior water user being fo~ced to release his senior water to the benefit ofros <br />downstream junior neighbor. As you can see, by-passes totally frustrate lhe slate's prior <br />appropriation system and ignore lhe ~roperty rights of water users, unlike the state's <br /> <br />~ See Len... from Koilh C. Kepi..., Division Engin;"", W'l'" Division 4, 10 Ray Kingston. Acting Paoni. District <br />Ranger, Seplcmber 20, 1993, .ttached to Eric WiiJcinsc?n lener Lo rask Force, AUguSl6, 1997, and David Hallford <br />Mernorandllm to r..k Fore.; July 28. 1997, <br /> <br />:JJ EJc01ronic Ma.Jl Mes8'&ge from Lois Witte, Dep!~ of AgricWtu.re: Office of General COlUl$eI. IO Seanor S. <br />Towns. For"l Scrvioe Region 2 Dire""" o( Physieal aesource!) (March 14, 1996). S.. also R. Michael Tumipseod <br />lenerto Crlli8 Bell, March 28, 1997. <br /> <br />. III. 5 <br />