Mr. William Atwater Chief
Counsel State Water Resource Control Board
P.O. Box 100
Sacramento, CA 95812
July 8, 1998
Re: Adjudicated Water Rights on federal lands
Dear Mr. Atwater,
I have been referred to your office by Dan Friank and Bob Bean for a legal opinion on whether or not pending federal legislation will have an adverse effect on State adjudicated water rights held on federal lands.
I have enclosed a copy of the most recent version of the legislation, the proposed colloquy language that has not been accepted at this point and a copy of the decree from the adjudicated water rights in question for your review.
You may or may not be familiar with the Quincy Library Group, but I'll assume you are to an extent because of steering committee member Michael Jackson, a noted water attorney from Quincy of whom I'm sure you have had some dealings. During the last two years the Quincy Library Group has worked toward passing legislation in Congress to direct the United States Forest Service to implement much of the QLG's proposal on the Plumas, Lassen and Sierraville Ranger District of the Tahoe National Forests. The legislation passed the House last July 9th with a vote of 429-1. It is now in the Senate awaiting action.
The dilemma that we have found ourselves in concerns the security of State adjudicated water rights with in the Quincy Library Group area should the legislation pass out of the Senate and be signed into law by President Clinton. More specifically we need to know what your opinion is concerning the implementation of the Scientific Analysis Team's guidelines to riparian areas that would be adopted from the Viability Assessments and Management Considerations for Species Associated with Late Successional and Old Growth Forests of the Pacific Northwest. These guidelines are commonly called SAT guidelines.
Currently the very serious concerns come from an individual that holds a federal grazing permit with State adjudicated water rights in Lassen County. He is under the impression that should the bill pass and a project, ie. Timber sale or riparian management project, be proposed within his grazing alotment that has the water rights in question in the same area, that the bill language allows for him to loose the right to utilize the water as he has done in the past. His water rights allow for him to divert water to ponds and meadows as well as for watering his cattle. Frankly myself and others believe that should a project take place in his alotment area that yes the riparian area restrictions and allowances for enhancement will be in effect on the water courses in question for the length of time the timber sale or riparian management project is working. But we do not believe that the SAT guidelines allow the USFS or anyone else to literally take his water rights away or divert from the historical use of the water that has been well established.
Historically cattle have been in the area of a timber sale or other activity on federal lands at the same time but literally on top of each other. Most resource users share the land and will accommodate each others needs if necessary, and I don't view this particular person to be any different. But should a cow wonder into a project area and drink from the stream and while doing so disturb the soil, some would perceive that to be damage to the riparian area and pursue removing the cattle from the area altogether. I think that is issue is the real fear that the individual has. The QLG does not advocate any resource user to be negatively impacted nor do we advocate any particular rights be eliminated by the implementation of the pending legislation.
With all of that said would it be possible for you to review the documents I have enclosed and write a legal opinion?
Some specific questions we would like answered are as follows:
1) Since the State of California owns all of the water and issues the right to use water through permits and other such legal documents that have been approved by a court of law, does any federal action or law supersede those permits or legal documents?
2) If implementing a federal law on federal lands diminishes the ability of any water right holder to utilize those waters for historical purposes for even a short length of time, ie. 30 days, does that set a precedence for the federal land holder or the owner of the water, the US Forest Service or the State of California, to take the adjudicated water rights permanently?
3) Does federal law in any way change the legal definition or identified right that is described in the decree of the adjudicated water right?
4) How are State adjudicated water rights protected from federal intrusion?
5) Should these State adjudicated water rights be "taken" by implementing the QLG legislation would that constitute a taking under the federal Endangered Species Act or Clean Water Act since the SAT guideline provisions would be adopted from the Northern Spotted Owl guidelines from the Pacific Northwest Forest Plan? Would any instance that you can foresee allow for a "taking" of private property rights- adjudicated water rights- under the QLG legislation?
Thank for taking the time to take this issue under consideration. We look forward to your reply as soon as possible.
Sincerely,
Rose Comstock
Quincy Library Group Steering Committee Member
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