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. "f f e e e Q&ll1~rla. ilittb anb l\e~eru. Q[:ompanp 1321 2900 Road Hotchkiss, CO 81419 Phone I FaJ< (970) 872 - 3586 RE: Overland Ditch and Reservoir Company Vs. U.S. Forest Service As with thousands of other agricultural water users and municipalities across the West, the Overland Ditch and Reservoir Company of Hotchkiss, Colorado owns and operates a ditch and reservoir'system located within National Forest lands. Over one hundred and fifteen persons owns shares in the Overland company, and count on the Overland Ditch and Reservoir to supply water to their farms, ranches, and orchards. You undoubtedly understand , the importance of water storage and conveyaIlce facilities on National Forest lands; a conservative estimate indicates that 80% of the water used by cities, industries, and agriculture in the West originates from National Forest hmds. Almost every citizen in the West relies on a water facility located within a National Forest for their daily water supply. Unfortunately, the United States Forest Service, the federal agency that manages National Forest lands, has in recent years mounted an effort to acquire the private water rights associated with ditch and reservoirs located within National Forests. (Actually, the Forest Service's efforts to acquire private water rights is not a new phenomenon, as the agency has in past years asserted a right to control private water rights on National Forest lands under "reserved righL," "fluvial geomorphology," and "channel maintenance" theories.) State and federal courts have invariably rejected Forest Service attempts to acquire private water rights. Not easily deterred, the Forest Service's latest effort to acquire private water rights is tied to administration of the easements and rights-of.way associated with privately-owned ditch and reservoir facilitles on National Forest lands. The Forest Service has mounted an effort to extinguish easements acquired under several statutes enacted by Congress in the late 1800's and early 1900's. These various congressional statutes authorized construction of ditch and reservoir facilities on National Forest lands, and spell out the conditions that the Forest Service can place on administration of the facilities. Under pressure from several environmental groups, the Forest Service now claims that casements acquired under these early congressional acts have been abandoned or relinquished, and that a 1976 statute, the Federal Lands Policy and Management Act (FLPMA) solely governs administration of ditch and reservoir facilities on National Forest lands. The Forest Service claims that the FLPMA allows it to impose "bypass flows" or "minimum instream flows" on these facilities; the agency requires the facility owner to let private water rights "bypass" ditch diversion gates and flow down a natural stream course, or requires the facility owner to release water from the reservoir in accordance with the agency's "instream flow" requirement. These bypass lII1d instream flow requirements infringe on vested water rights that have been used for hundredS of years. The Forest Service does not compensate the facility owner for the water rights taken by the bypass and instream flows. The situation faced by the Overland shareholders is a classic example of what other ditch and reservoir owners will soon face unless the Forest Service effort is stopped. When