BOARD00356

• Board Meeting Date: 5/22/2000
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

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MAY-OI-OO 08:15AM FROIot-COLORADO ATTORNEY GENERAL
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including the use of water to attain the primary and secondary
purposes of the National ForestS. Accordingly, the Forest Service
may not use its permitting authority to reallocate or otherwise
obtain water for National Forest purposes from non-federal water
rights which have been or will be recognized in McCarran
proceedings; and

(3) The Forest Service must attain the secondary purposes of the
National ForestS by obtaining and exercisin~ water rights in
accordance with state and federal law and by working with owners
of non-federal water rights to achieve National Forest purposes
without inrerferin~ with the diversion.. storage, and use of water for
non-federal purposes. The use of these approaches will avoid the
circumstances that have motivated the Forest Service to act in a
manner which exceeds its legal authority.

Task Force Report, Executiye Sllmmary (emphasis added).

The Task Foree's legal conclusions are well-founded in law. Under section 6(i) of the
National Forest Management Act of 1976, any revisions to land use authorizations "shall be
subject to valid existing rights." 16 V.S.C. 9 l604(i). In addition, sections 701 (g) & (h) of the
Federal Land Policy and Management Act of 1976 explicitly protect both SOlte jurisdiction over
water and valid existing rights. 43 V.S.C. 9 170J.

While I agree with and urge you to accept the Task Force's legal conclusions, I recognize that
people of good will can disagree about the law. Tbis is evidenced by the fact that a minority of
the Task Force members disagreed with the majority's legal conclusions. However, all the Task
Force members agreed oil .cerrain public policy principles, including the following: -

. achieving national forest purposes, whenever possible, through the use of alternative
~ater management suaregies, rather than through bypass flow reQuirements;

· using state instream tlow programs, where available, to acquire rights and provide water
for national forest purposes; and

· seeking voluntary agreements with non-federal water rights holders.

Task Force Report at IX-4.

The minority recommended that the Forest Service Manual be amended to direct the
Forest Service to use its authority to require bypass tlows only if other strategies are not adequate
to achieve national forest purposes. Task Force Report at IX-IO. Even if the Forest Service is
unable to follow the majority's legal conclusion. I urge you to hee Task Force's unanimous
recommendation that it is good ublic policy to seek bass flo only lis a last resort.

Through both the McCarran Amendment and a consistent history of deference to state
water adj udication systems, Congress has recognized the need for a unitary sOlte system of
allocating water, rather than competing state and federal systems, in order to increase certainty
and fairness in allocating this scarce, vital resource. The forest plan should reflect that policy by