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<br />However, we understand that many water users view this requirement as only mandating <br />measurement of the water they remove from the stream, not the water left instream to <br />satisfy the Board's right. Trout Unlimited recommends that the Board negotiate specific <br />stream flow monitoring requirements, like river gages, to enable meaningful enforcement <br />of its rights, <br /> <br />Agenda Item 8c: Potential Enforcement Concerns <br /> <br />Trout Unlimited is concerned that the Board did not file a Statement of Opposition ' <br />against the Dundee Realty USA, Inc.'s application to change its water rights at the <br />Arapahoe Basin ski area, Case No. 98 CW 95, Water Division 5. This case demonstrates <br />the limits of the Board's current enforcement system, Dundee is not only contemplating <br />the installation of snowmaking equipment for the first time at Arapahoe Basin, but a <br />practice of making snow for long enough to enable skiing throughout the summer. <br />According to the information available in the Draft Environmental Impact Statement <br />issued last summer by the Forest Service, there is a high likelihood that these new <br />activities will lower stream flows well below the Board's decreed rights for critical <br />periods of time during most years. Notwithstanding the fact that the Board had entered <br />into a s~ipulation with Dundee's predecessor in interest, Keystone Arapahoe Limited <br />partnership, at a time when Arapahoe Basin and Keystone were jointly owned, the new <br />proposals represent a substantial change from what was contemplated at the time the <br />Board entered into that original stipulation, Given that the change, if the Forest Service <br />allows it to go forward, will adversely affect the environment that the Board's right <br />sought to protect, Trout Unlimited believes that the Board should file a Statement of <br />Opposition and work with the ski area's new owners to maintain a viable fishery in the <br />North Fork of the Snake River. <br /> <br />Agenda Item 9b: US Forest Service Reserved Water Rights in Divisions 2,3, and 7 <br /> <br />Trout Unlimited has heard repeatedly that the Board, through its attorneys is demanding <br />the inclusion of a "poison pill" provision in any potential settlement. With the poison <br />pill, future US Forest Service efforts either to appropriate instream flows pursuant to state <br />law or to require bypass flows pursuant to federal law would result in reopening their <br />reserved rights adjudication. TU has grave concerns about this approach and urges the <br />Board to reconsider. <br /> <br />First, the Forest Service should not be precluded from appropriating water under state <br />law; they should have the same opportunities as any other water user. Second, the Forest <br />Service does not have complete discretion in deciding to require bypass flows; federal <br />statutes invest the agency with an affirmative duty to protect the environment when <br />issuing permits; requiring a bypass flow may be the only means to accomplish that <br />statutory mandate. Moreover, even if the Forest Service chooses not to require a bypass <br />flow, an outside party could compel the agency to do so via litigation, Third, it would <br />simply be bad policy to apply such a poison pill in cases involving the Endangered <br />Species Act (again, where the Forest Service may not have discretion) or the Federal <br /> <br />3 <br />