BOARD01411

• Board Meeting Date: 3/26/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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the flows claimed in the quantification that was filed exceed the power plant capacity at Crystal
Reservoir and raise concerns about flooding and the 'effect on the yield of the Aspinall Unit. as
well as about whether those flows are justified undet the purposes of the Monument (now Park).
Wendy Weiss attended public meetings held by the Park Se\'\'ice in Gunnison and Delta
and met with a group of potential west slope opp~sers to discuss strategy. We have
provided the Board with a copy of the draft statejnent of opposition. Tile Board may want
to discuss tile statement of opposition and litigatio,* strategy in executive session.
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2. Trout Unlimited v. U.S. Dept. of Allriculture, :C.A. No. 96.WY -2686-WD.

Issue: Did the U.S. Forest Service act arbitriuily and capriciously when it signed the
.Ioint Operations Plan for Longdraw Reservoir withqut requir\rig by-pass flows?

Decision: This case has been on hold since 199~. In October 2000 the federal magistrate
ruled in favor of the State's motion to intervene. .B~efing will begin in March 2001 and
continue through July 2001.

Discussion: In the early 1990s, several reservoirs in the Roosevelt National Forest were up for
renewal of their special use permits from the Fores(Service. A Joint Operations Plan ("JOP")
among the owners of some of the reservoirs and the! Forest Service was agreed to after
substantial modeling showed that the JOP was the n:tost feasible plan to preserve the rights of the
water owners as well as improve the overall fish halPitat. After the agreement was signed in
1994, Trout Unlimited sued. The most important o~its 13 claims is that the Forest Service was
required by law to require a bypass flow to maintain instream flows below Longdraw Reservoir
(owned by Water Supply & Storage). Thus, the two main issues are whether the Forest Service
has the authority to require by-pass flows when renewing reservoir permits in the national
torests, and if so, whether the Forest Service had th~ oblil!ation to require a by-pass flow in this
case. The case was originally lodged in federai court in Washington D.C.. but has been moved
to Colorado for further proceedings. The CWCB aJj.d SED strongly supported the JOP and will
explore options for joint defenses with other defend/ints. The first round of briefs were filed
on March 1511'. The CWCB, SEO, City of Greeley and Water Supply & Storage Co. filed a
brief arguing that the Forest Service has no aut~ority to impose bypass flows. We also
wrote and coordinated the fiUng ofan amicus br1effrom the states of Alaska, Arizona,
Idaho, Nevada, New Mexico, and Wyoming on the same issue. Reply briefs are due May
15.

3. Nebraska v. WyominlZ, United States Supre1e Court. No. 108, OrilZinal.
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~: Has well pumping in Wyoming viol~ted the existing Supreme Court decree that
apportions the North Platte River among Colorado.jWyoming, and Nebraska? Should the decree
be moditied to add new injunctions against wyo~g?

Decision: The states have reached a final se#lement, signed by the governors. The
states presented the proposed decree to the Speoial Master on March 19th, He will allow
the amicus parties to comment on the agreement and then hold a final hearing in a few
weeks. Trial was scheduled to begin on May 10th.1 Nebraska and Wyoming reached agreement
on "Principles for Settlement" virtually on the cowthouse steps. The proceedings have been
. stayed until December I st to allow the parties to d~ft the legal documents necessary to .