FEATURE ARTICLE

December 2004

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Ditch and Water Structure Authorizations across Federal Lands: New Case Law Supporting Bypass Flow Requirements

One of the more controversial topics in Western water law is the imposition of bypass flow requirements as a condition to issuance or re-issuance of permits for water facilities located on the federal domain. Federal courts in several Western jurisdictions have recently upheld, and even mandated, agency action requiring bypass flows when permitting new facilities, re-permitting existing facilities, and even when simply allowing continuation of existing facilities that have no specific permitting requirements.