BOARD01512

• Board Meeting Date: 8/26/1988
• Description: CWCB Meeting
• Board Meetings - Doc Type: Meeting

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FAIRFIELD AND WOODS. P. C.

Honorable Duane Woodard
August 25, 1988
Page 3

Confirming the U. S. assumptions and conclusion is Robert
Milhous, for the U.S. Fish and Wildlife Service:1

All of the [five] bankflow methods and the
effective discharge methods tend to assume that
existing streamflows are required to maintain the
channel in the future. The other methods are based on
observations that also tend to assume the status quo is
needed.

Yet even Mr. Milhous admits:

Is there any reason to believe that favorable condi-
tionsof flow are secured only by the existing flows?-
or can favorable conditions be secured by other
conditions? At present we do not address these
questions very well. (Id. at 107.)

We respectfully submit that even the language in Jesse, let
alone the additional legislative history attached to the briefs,
shows that the United states has been operating from incorrect
assumptions as to the crucial definition of "favorable conditions
of water flow." Common sense, and all the legislative history,
tells us that the "Land of Many Uses" was not intended by
Congress to be the primeval forest with water flows as they
existed before the white man arrived. otherwise, timbering,
mining, grazing, and the other uses of the forest, specifically
including water diversion works and rights-of-way for water
diversions and ditches could never have been allowed.

Jesse shows many assumptions the State's lawyers and
engineers should be using to reduce greatly any quantity of water
which the United states would obtain. The decree must find "the
purpose of the reservation would be entirelv defeated without the
claimed water. New Mexico, 438 U.S. at 700." (Jesse at 494;
emphasis in original.)

1 Fort Collins: Hydraulic Engineer,
"Determining Instream Flows For Flushing
Maintenance - A Review," in Proceedinqs of
Front Ranqe Branch. Hvdroloqv Davs, April
108.

Instream Flow Group,
of Fines and Channel
the sixth Annual AGU.
15-17, 1986, at page