LAST WEEK'S STORIESHISTORY
|
July 25, 2001 Endangered Species Colorado suit parallels Methow water issues by Lee Hicks A federal lawsuit in Colorado has challenged the Forest Service’s authority to use "bypass flows" to regulate stream- flows in a way that impedes state-allocated water rights. The issues are similar to those in the suit by Okanogan County and several irrigators over biological opinions that restricted water in the Methow basin. In the Colorado action, Trout Unlimited sued to force the Forest Service to regulate water on agency land to improve stream- flows for fish. A central question in the litigation is whether the Forest Service, or other federal agencies, can in effect preempt state water rights through regulatory methods. The significance of the case has resulted in intervention by attorneys general of six western states, a Colorado water storage company and the City of Greeley, Colo. The states are Arizona, Colorado, Nevada, New Mexico, Idaho and Wyoming. Although the Forest Service and affected water users in the case reached a compromise, the intervening defendants argue that, "the underlying issue is far from resolved." The Forest Service will be under continued pressure to require bypass flows as a "condition of every right-of-way" to use water on agency land, the defendants maintain. They cite a November 2000 strategy paper that indicates the agency’s long-term intent to continue using the bypass flow strategy. The effect, "is creating uncertainty for state water allocation systems..." The case directly involves water storage facilities, such as reservoirs, located on federal land while the Methow issues involve diversions of stream- flows. In the Methow, the Forest Service—acting under biological opinions of federal fisheries agencies—reduced water withdrawals through conditions of special-use permits. In "friends of the court" documents the states in the Colorado suit argue that the Federal Land Policy and Management Act, "expressly bars the Forest Service from exacting bypass flows as a condition of land-use permit renewals." Although the FLPM act allows conditions to be placed on permits, they, "may not interfere with state priority systems for allocating and administering water rights, nor with the diversion and use of water allocated under state law," the defendants argue. By using bypass flows to obtain water, the Forest Servce also circumvents state water rights adjudication procedures. As such the action, "establishes a dual system of water administration and creates uncertainty and confusion," the defendants claim. Also cited in the defendants’ briefs is a 1997 Congressional Task Force report that questions Forest Service authority to require the "bypass flows or water transfer requirements" as conditions of issuing permits. The Okanogan County lawsuit, filed early this summer, argues that the Forest Service enforcement of biological opinions effectively results in a "taking" of existing senior water rights. Similar litigation in the Tule Lake basin of northern California recently led to a U. S. federal claims court decision that irrigators were entitled to compensation for loss of irrigation rights guaranteed by contract with the U. S. Bureau of Reclamation. Opinion | Sports |
Local Interest |