BOARD00408

• Board Meeting Date: 5/21/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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Decision: After several years of negotiations, inpluding several reversals of position from .
the Forest Service, the parties began a formal settlenient process supervised by ex-water judge
John Tracey early this year. In August the objectors[sent a 60-page settlement proposal to the
Forest Service. The proposal was also forwarded to . ois Schiffer at the Department of Justice,
with a letter from Ken Salazar suggesting a meeting imd warning that time might be running out.
The Forest Service's response was very discouraging. Rather than stop negotiating, the objectors
proposed a technical committee to clarify how much 'water each side is offering, on what basis,
since we seem to disagree on the impacts of each other's proposals. The main negotiations have
been on hold pending the outcome of that process. The technical committee has now
completed its report and the report has been dist~ibuted to the attorneys and Judge
Tracey, but the objectors have not yet met to disc~ss it. The report clarifies areas of
agreement and disagreement and, not surprisingly, shows ns to be far apart on how much
water is needed for both fish habitat and channel htaintenance and on how to determine
water availability for future development.

Discussion: Applications for instream flow water lights in Water Divisions 2 and 7 have been
pending since the '70s. The claims are for "channel Jilaintenance flows" allegedly needed to
secure favorable conditions of water flow for downst/'eam water users. After a lengthy and
expensive trial, the State and water users defeated the United States' claims for channel
maintenance flows in Water Division 1. Shortly afteiward, the Forest Service responded by
seeking to require the owners of existing water facilities in the national forests to bypass water as
a condition of permit renewals. The resulting controyersy led water users, the Forest Service,
and the State to begin negotiating a compromise thatwou!d provide protection and certainty for .
existing facilities in exchange for the recognition and protection of specified flows within the
forests. The parties stipulated to a decree in Water Division 3, signed by the Water Judge on
March 30, 2000. This settlement approach works in the Rio Grande basin, where new water
development on or above the national forests is not aPticipated. Futllre uses continue to be an
issue in negotiations in Divisions 2 and 7.' .
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6. Forest Service Reserved Riahts Cases, Case N~s. W-1146-73 et al., Water Division 7.

Issue: Is the U.S. Forest Service entitled to reserved rights for instream flows for
channel maintenance purposes?

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Decision: Technical representatives of the Forest Service, the State, and the Southwestern
Water Conservation District continue to work on ass~ssing streams in t1Je forests to determine
both Forest Service and water user needs and to see irthe two can be reconciled. The parties'
negotiation team met on February 22, June 5, and September 6 to assess progress so far. The
technical committee is close to completing its initial review ofthe forest streams, but then plans
to revisit areas where it was unable to reach a consel1$us. We put offthe negotiating meeting
scheduled for the end of November to allow the tech!Jical committee more time to complete its
recommendation. We have begun drafting language 10 describe some of the settlement concepts
discussed by the technical committee. After the tec*ical committee completes its work,
however, the main negotiating committee will have to review each recommendation, and
probably meet with all individual water users, beforela complete settlement proposal can be put

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