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<br />\ <br /> <br /> <br />. <br /> <br />KEN SALAZAR <br />Attorney General <br /> <br />BARBARA McDoNNELL <br />Chief Deputy Attorney General <br /> <br />ALAN J. GILBERT <br />Solicitor General <br /> <br />STATE OF COLORADO <br />DEPARTMENT OF LAW <br /> <br />STATE SERVICES BUILDING <br />1525 Sherman Street - 5th Floor <br />Denverr Colorado 80203 <br />Phone 303) 866-4500 <br />FAX 303) 866-5691 <br /> <br />OFFICE OF THE A '!TORNEY GENERAL <br /> <br />March 10, 2000 <br /> <br />MEMORANDUM <br /> <br />TO: Colorado Water Conservation Board <br /> <br />FROM: Ken Salazar <br />Attorney General <br /> <br />Felicity Hannay <br />Deputy Attorney General <br /> <br />. <br /> <br />Jennifer L. Gimbel <br />Assistant Attorney General <br /> <br />RE: <br /> <br />Report of the Attorney General <br /> <br />. <br /> <br />Forest Service Reserved Rights Case, Case No. 81-CW-183, Water Div. 3. <br /> <br />Issue: Is the U.S. Forest Service entitled to reserved rights for instream flows for <br />channel maintenance purposes? <br /> <br />Decision: The United States, the State of Colorado, and the three largest water user <br />organizations in Water Division 3 signed a stipulation agreeing to a proposed decree that will <br />award the Forest Service rights for instream flows with a 1999 priority. The decree will be <br />subject to reopening if the Forest Service seeks to impose bypass flows on existing water supply <br />facilities located in the national forests. <br /> <br />Discussion: Applications for instream flow water rights in water divisions 2, 3, and 7 have <br />been pending since the '70s. The claims are for "channel maintenance flows" allegedly needed to <br />secure favorable conditions of water flow for downstream water users. After a lengthy and <br />expensive trial, the State and water users defeated the United States' claims for channel <br />maintenance flows in Water Division I. Shortly afterward, the Forest Service responded by <br />seeking to require the owners of existing water facilities in the national forests to bypass water as <br />a condition of permit renewals. The resulting controversy led water users, the Forest Service, <br />and the State to begin negotiating a compromise that would provide protection and certainty for <br />existing facilities in exchange for the recognition of protection of specified flows within the <br />