2509.21_40
Page 1 of 10
FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
R2 AMENDMENT 94-1
EFFECTIVE 6/1/94
CHAPTER 40 - OBJECTIONS TO APPLICATIONS OF OTHERS
41 - DETERMINING IF OBJECTIONS ARE NEEDED. In most of the States in the
Rocky Mountain Region there are established procedures of objecting to water right
related applications made by others. The great majority of objections are filed
against applications for new water rights, application to change a point of diversion,
or to change the use of the water. Normally, an objection is based on the fear that if
the new right or the change of point of use or diversion is granted, the holder of an
existing right would be injured. When an objection to an application for a change of
use or a point of diversion is filed, it normally is the applicant's responsibility to
prove that the proposed change will not adversely affect other water users.
Any water use by other parties on or adjacent to National Forest System lands has
the potential for having an adverse affect on System lands. Each application for
such a use must, therefore, be looked at very critically and have a determination
made as to whether or not an adverse affect is likely to occur. There is no one
cookbook type of a methodology available to determine if an adverse affect is likely
to occur. The amount of water in the stream, the amount of water applied for, the
amount of water needed for National Forest System purposes and uses in the
adjacent area, all must be considered. In the absence of a cookbook approach, a
professional judgment as to whether or not an adverse affect will occur must be
determined. When it is felt that granting the application would result in an adverse
affect, an objection should be made to the application. This holds true for all
National Forest System lands, both reserved and acquired. The adverse affect
concerns any purpose or use and is not restricted to the 1897 Organic Act purposes.
In some instances, the water use you wish to protect by objecting is not a beneficial
use under State law. The adjudicating body cannot, therefore, give any weight to
the objection. In other instances, an objection may be based on protecting a
foreseeable use, a water use the Forest may develop sometime in the future. The
adjudicating body cannot give this objection any weight either. There is, however, a
very sound reason for making the objection known. That reason is to prevent the
United States from being "estopped" from asserting water rights in the future for a
use not regarded as beneficial by the adjudicating body or foreseen and not
recognized by the adjudicating body.
Estoppel is a legal term. A dictionary defines it as, ". . . a bar preventing a party
from asserting a claim inconsistent with a position he previously took, either by
conduct or words, especially where a representation has been relied upon or acted
upon by others." An example of how it applies to water applications of others
follows. When a party makes any type of a water application that could have an
adverse affect on some future activity of the United States, the United States can do
one of two things. It can keep quiet or it can object. If it keeps quiet, it is, in effect,
by conduct and a lack of words, giving its blessing to the application. It is,
therefore, barred (estopped) from any activity in the future which would have an
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 2 of 10
adverse affect on the applicant's use of the water involved. If, on the other hand,
the United States does say something, even though it speaks of purposes or foreseen
uses not recognized by the adjudicating body, the applicant has been put on notice
that the United States has not given its blessing and may assert a water use for
that same water someday. When this is the case, the United States is not subject to
estoppel.
In Colorado, the Colorado Water Conservation Board is vested with the authority to
make in-stream flow claims. The Regional Office routinely objects to these claims.
Although it seems incongruous, there is a valid reason for the objections. The
reason is simply to avoid being estopped in the future. Colorado's claims are based
solely on fishery needs. If the United States were to remain silent, it would imply
that the in-stream flows were satisfactory to the United States. This is not
necessarily the case since we may desire to have in-stream flows for purposes and
uses other than fish. Our objection keeps our right to claim such uses in the future
viable.
42 - BEING AWARE OF APPLICATIONS OF OTHERS. Before an objection can be
prepared for an application that may have an adverse impact on the National
Forest System, it must be known that an application has been filed. The way to
discover what applications are being made varies in each of the Rocky Mountain
Region States. The variety encompasses a very elaborate and detailed notification
procedure in Colorado to no notification whatsoever in Wyoming. A description of
the procedures used in each of the States follows.
Colorado: Each month, the Water Divisions publish a "Resume" of all of the water
right or change applications made in the previous month. The resume must list the
applicant's name and address, a description of the water right sought and its
location; Anyone can be on the mailing list for a Water Division resume. The
subscription fee varies from $12 to $15 per year. Currently, the Regional Office
subscribes to all of the seven Divisions and supplies the Forests with the resumes of
concern to them. One Forest Supervisor's Office has a subscription of its own,
others are free to do so if they wish.
Upon receipt of the resume, any interested party has until the end of the second
month following the month in which the application was filed to file a State of
Opposition.
One only needs to go through the resume and analyze the location involved to
determine if the proposed use is on or near System lands. The determination of
whether or not an adverse affect is likely, or whether or not estoppel might be
involved, can then be made, followed by the decision to object or not.
In addition to the opposition statement, Colorado Water Law has a provision
entitled, "Relation back of priority date," (Section 37-92-306.1). It allows a second
applicant to apply for the same water, in the same stream, and at the same point of
diversion as the first applicant, and have the date of the second application relate
back to the date of the original application.
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 3 of 10
The "relation back" provision allows for second applications filed in January and
February to be included in the same adjudications as the initial application made in
November and December. This prevents the water rights adjudication for the
January and February secondary application from being classed as junior to the
rights adjudicated for the original November and December applications.
This provision is of value when a permittee insists on applying for a water right on
National Forest System lands in his own name. The provision allows the Forest
Service to acquire a priority date equal to the permittee's, rather than being junior,
if the Forest Service application is filed in January or February.
In order to utilize this procedure, it will be necessary to check the water right
applications for November and December in the Water Clerk's Office before the
resume is published. A check made on November 30, for instance, would reveal any
November applications which the Forest Service might wish to relate back. In some
situations, such as when a permittee is filing in his or her own name, the
opportunity is there to avoid the occurrence of an undesirable situation.
South Dakota: When an application is received by the Water Management Board,
the Board instructs the applicant to publish notices thereof, in a form prescribed by
the Board and in the official newspaper in the County where the water is being
appropriated, once each week for two successive weeks. The second publication
must occur at least 30 days before the first day of the Board meeting at which the
matter noticed is to be heard. The notice must give the name and address of the
appropriator or a description of the desired water right and the time and place
when the application will be taken up by the Board. It is at this Board meeting that
anyone who wishes to object may do so. The Board either grants or denies the
permit after this meeting. The last paragraph of the Colorado description, above,
also applies here, with the exception that a newspaper notice is involved rather
than a resume.
Nebraska: Nebraska does not publish a periodic summary of applications for a
water permit. The State does, however, compile a list of the applications made in
each month. Anyone wishing to keep aware of what applications are being made
may request the Department of Water Resources to send them the listing monthly.
Any objections to applications must be made to the Department of Water Resources
by the first of the next month.
Kansas: Kansas does not publish notices of water right applications on a Statewide
basis. The Chief Engineer does send notices of applications for water rights to the
holders of water rights that are located within approximately one-half mile of the
applied for right. If an objection is filed, the Chief Engineer can schedule a hearing
but he is not required to do so.
Wyoming: Wyoming has no procedures for publishing the names of water right
applicants. The State Engineer's Office, on an informal basis, does furnish the
Regional Office with information concerning any application for a water right on
National Forest System lands. The Regional Office then passes this information on
to the concerned Forest.
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 4 of 10
43 - OBJECTION PROCEDURE. Until the U.S. Supreme Court made its 1971
ruling about the McCarran Amendment (FSH 2541.1), the Rocky Mountain Region
of the Forest Service did not file oppositions to water right applications filed by
other parties. This was based on the interpretations that all water needed for uses
on the National Forests was covered by a Federal reserved water right and,
therefore, senior to any right being applied for after the reservation date. Because
we felt we were senior and new junior rights could not harm us, we did not have a
need to file oppositions. The 1971 ruling, however, made it clear that this was not
the case.
The ruling removed most of the water uses made on National Forest land from
under the cover of the Federal reserved water right. This means that our uses are
not necessarily senior to water rights that have been and are currently being
obtained by others. We must, therefore, in those areas where we have been served
under the McCarran Amendment and are involved in formal judicial adjudication
proceedings (all of Colorado), oppose all applications that will result in an adverse
effect on National Forest System lands.
Since 1971, we have, in those areas where we are involved in judicial adjudication,
opposed all water right applications that even appeared to be a danger to NFS
purposes or uses. The reason for this was presented in sub-Chapter 41. We
followed this course of action on the advice of the Department of Justice.
Recently, another U.S. Supreme Court ruling related to the payment of opposing
attorney's fees and court costs caused the Department of Justice to reexamine
procedures for filing oppositions. They now advise us to request an opposition to an
application only when the proposed use has a real potential to harm a purpose or
use. When we wish to put an applicant on notice, they want us to send a form letter
to the applicant informing him or our interest, rather than filing a formal objection.
A single copy of a Notice Letter follows this chapter, exhibit 01.
The Department of Justice also developed a form called a Litigation Report to be
completed for every Colorado application we wish to formally oppose. The
Department of Justice will no longer file oppositions on behalf of the Forest Service
unless a properly prepared copy of the form is submitted for each opposition. This
decision to proceed with an objection will be based on an evaluation of the
information contained in the Litigation Report and possibly, some followup phone
calls. All litigation Reports completed should be sent to the Regional Office. They
will then be forwarded to the Department of Justice. It must be kept in mind that
this only applies to Colorado. A sample copy of a Litigation Report follows this
chapter, exhibit 02.
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 5 of 10
43 - Exhibit 1
A sample copy of a Notice Letter
Return Receipt Requested
#
Re: Water Division No. , Case No.
Dear
:
We note that you have applied for a (conditional) (absolute) (change in use or your)
(change in location of your) water right (finding of reasonable diligence) in the
referenced case.
Rather than objecting to your application (for a conditional water right) (for an
absolute water right) (to change the use of your water right) (to change the location
of your water right), we wish to simply inform you that the United States has
claims to water rights for the National Forests which have not yet been confirmed
by the water courts. These rights, if and when they are confirmed by the courts,
will be senior to the right which you seek in the referenced proceeding. We wish
you to be aware of this so that you and your successors may plan accordingly and
are not surprised to discover at a later time that the Government's rights are senior
to yours.
If you have any questions, please write to:
Sincerely,
cc: person's attorney, if any
Forest Supervisor
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 6 of 10
43 - Exhibit 02
A sample copy of a Litigation Report
DOJ use only:
CAT I
CAT II
REQUEST FOR STATEMENT OF OPPOSITION
(LITIGATION REPORT)
1. Requesting Agency
.
2. Water Division No.
. 3. Application No.
4. Resume (month)
.
.
5. Check applicable:
Application for Absolute
, Conditional
Finding of reasonable diligence
Change of use
,
, Change of point of diversion
,
.
6. Water right (use) of United States of America that will be injured if application is
granted: (If Agency elects to use a more detailed supplement, attach copy in lieu of
completing 6a.)
a. Reserved Rights for: Appropriative Rights for:
Timber production
Favorable conditions of waterflow
Range (that is, stockwatering)
Recreation
Fish and Wildlife
Public Springs & Watering Holes
Converted Oil and Gas Wells
Oil Shale Withdrawals
Wild and Scenic Rivers
National parks
Wildlife Refuge
Fish hatchery
NationalDefense
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 7 of 10
Indian
Other (explain fully)
43 - Exhibit 02--Continued
b. Date and citation to document or statute effecting withdrawal or
reservation from the public domain
.
c. Describe any federal agency development, diversion, or use of water
from the source.
d. Has applicant applied for special use permit; temporary use permit,
right of way or other permission to enter on and use government land:
(Answer yes, no, or n/a)
If so, has applicant received it?
e. Historic use of water for:
(Explain and describe here any historic use made of water by the agency
or permittee from the source e.g., stockwatering, fish and wildlife; give
dates and measured or estimated quantities; indicate whether measured
or estimated).
f. Appropriative Right:
(Explain and describe the government's or permittee's right or use and
state whether or not a decree exists and whether or not application has
been made by the agency; be sure to give date and quantity).
7. Nature and Extent of Injury:
(Describe in detail the precise nature and extent of the injury to any of
the water rights described in paragraph 6 or historic use that will result
if the application is granted. Include approximate quantities of United
States' use, "normal" streamflow, and quantity for which applicant seeks
decree).
ATTACH A MAP OR SKETCH TO ILLUSTRATE YOUR
DESCRIPTION.
* Include development by others under license or permit from agency,
such as., converted oil or gas well, spring for stockwater.
8. Witnesses:
a. State the name or names, positions, and telephone number of the
person or persons who can testify from personal knowledge or
professional expertise as to the above-described injury:
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 8 of 10
43 - Exhibit 02--Continued
b. Name any person(s) who has(have) historic knowledge of use by
agency or non-use by applicant (contrary to applicant's claim) that is not
of record and who can so testify.
9. Real Evidence:
Describe any records, documents, or data available to support either the
historic use by the United States or nature and extent of harm: (e.g.,
grazing permit records, streamflow data, project files, field data, photos,
and so forth). (Follow this report with copies but do not delay this report
to reproduce).
10. Weaknesses in Applicant's Case:
Any apparent, possible or suspected weaknesses in the applicant's case:
(such as, abandonment, impossibly large quantity claimed, means of
conveyance or pump too small to convey quantity claimed, acreage to be
irrigated too small for quantity claimed, applicant may not have been
reasonably diligent in developing conditional water right, no physical
evidence of diversion in case of application for absolute right).
11. Possibility of Stipulation:
a. State whether or not you believe it possible to formulate and propose
other or additional conditions to be included in any decree that will
adequately protect the interests of the United States and which might
serve as the basis for a stipulated settlement with applicant. (For
example, physical limitations on diversion structure or size of ditch,
pipeline or other means of conveyance). If there are, state generally what
they might be:
b. Should provision be included in any stipulation entered into in this
case that applicant will obtain special use permit or other authorization?
Yes
No
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 9 of 10
12. Does this case raise important policy issues or could the final outcome
establish a particularly favorable or unfavorable precedent?
43 - Exhibit 02--Continued
a. Response by field:
b. Response by Regional/State office:
13. Remarks:
(Here state briefly any other facts, suggestions, background, or other
information that the attorney handling this case should be aware of).
14. Disposition:
Send this form in immediately and follow up within 30 days with the
following:
Copy of the complete application you wish to oppose.
Certified true copy (BLM only) of reserving document unless reservation
is in statute or Federal Register. Forest Service provide ordinary copy.
Further details on Items 6-10.
Prepared by
(Name, position, telephone number)
Field-level
Review by
(Name, position, telephone number)
Regional/State Office
Review by
(Name, position, telephone number)
THIS REPORT IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.
DO NOT PROVIDE IT TO ANYONE OR DISCUSS ITS CONTENTS OUTSIDE
YOUR AGENCY, EVEN UNDER THE FREEDOM OF INFORMATION ACT!
R2 AMENDMENT 2509.21-94-1
EFFECTIVE 6/1/94
2509.21_40
Page 10 of 10
ADVISE DEPARTMENT OF JUSTICE OF ANY SUCH REQUEST.