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State fights Feds on bypass flows

Article by Allen Best

Water – October 2001 – Colorado Central Magazine

THE CURRENT QUARREL between Colorado’s water establishment and the U.S. Forest Service comes down to creeks named Fancy, Missouri and French. They tumble off the Sawatch Range and — if left to their natural ways — flow into Homestake Creek and thence into the Eagle River.

Water only rarely flows naturally in Colorado. On these creeks and others, an elaborate network of giant pipes and small dams efficiently collects the water for eventual delivery to homes in Aurora and Colorado Springs. By the state’s first-in-time, first-in-right water law, the cities can even make the creeks go bone dry.

This occurs in the National Forest, and when the diversions began in 1967, the Forest Service imposed no special conditions. However, when the cities sought a permit in 1983 for an expanded network, the federal agency insisted that small quantities of water must continue to flow down these streams even if, under state law, the cities could make the streams go dry.

“Bypass flow” is the term adopted to refer to the water left in the river.

According to Colorado law and tradition, water belongs to the first person to put it to beneficial use, not to the person or organization whose land it flows over. That way no one can move further upstream and claim the water — including the federal government. If you want water, you either have to buy it or develop unused sources.

Thus when it comes to federally imposed bypass flows, Colorado’s water establishment objects strenuously. Allocating water is a state’s duty, they say, and even the federal government has no authority over water on its own lands.

The Forest Service responds that bypass flows stem from the agency’s authority over land use, similar to the way a landlord can specify how a renter uses an apartment.

This is part of a decades-long dispute across the West about water and federal lands. The disagreement has been particularly sharp in Colorado, in part because of the state’s fast growth and also because the state’s water laws soundly reject the idea that water left in streams has its own value.

Now, that dispute is heating even more, with a particular focus on the White River National Forest. Republicans — for this is an issue in which Democrats and Republicans consistently part company — want the agency to back away from insisting upon bypass flow in the revised forest management plan. The revised plan is scheduled for release in November.

Left unchallenged, this assertion will have “chilling effects on water users,” says Josh Penry, who was a spokesman for U.S. Representative Scott McInnis until this fall, McInnis is a Republican who grew up in Glenwood Springs. As the White River goes, adds Penry, so go many other national forests and possibly other federal land agencies, including the Bureau of Land Management.

Environmental groups, which have been prodding the agency to be more resolute in insisting upon bypass flows, see this sort of talk as wild-eyed. “It doesn’t seem unreasonable that water users should be asked, as a condition of using the public lands, to leave some small amount of water in the streams so that fish and other aquatic organisms can survive and habitat can be maintained,” says Dave Nickum, executive director of Colorado Trout Unlimited.

Context of the Dispute

Forest lands in Colorado were set aside a century ago by presidential proclamation, mostly by Benjamin Harrison and Theodore Roosevelt. Congress authorized the set-asides, seeking to stop the unregulated cutting of forests that was threatening water supplies. However, Congress did not clearly address whether the federal government had authority over water, or whether it intended for the Forest Service to work within the state laws that adjudicated water.

That muddied authority was of little consequence until the 1960s and 1970s, when Congress passed additional laws intended to protect the environment. The Forest Service began asserting its control over water on land it administers, but those efforts have been opposed consistently by states. Despite a variety of court cases, including two before the U.S. Supreme Court, there is no clear resolution on what authority states have.

The Forest Service has backed away from insisting that its water rights came with the land, and more recently has focused on bypass flows. Authority for imposing that requirement can be traced to the property clause of the U.S. Constitution, as well as several laws passed by Congress during the last century.

The agency has been timid, however. In a 1992 letter, just before the election of Bill Clinton, Agriculture Secretary Edward Madigan sent a letter to then Colorado Senator Hank Brown that promised that new bypass flow requirements would not be imposed on existing water supply facilities, but only on new water diversions.

This was a compromise, and it affected a project dearly important to Brown’s hometown of Greeley. Greeley has depended for a century on water projects that regulate snowmelt on the national forests adjacent to Rocky Mountain National Park. Bypass flows would have required the city to spend millions of dollars looking for new supplies.

One practical repercussion is that the Forest Service agreed that two miles of the Poudre River could become dry during April and October because of water held back by Long Draw Reservoir. Disgusted by this, Colorado Trout Unlimited sued the Forest Service in 1995, charging that the agency had abandoned its responsibility to the environment.

“You look at the geography there, and we say, ‘Good grief, if we can’t protect a stream in our crown jewel lands, where can we protect a stream?’ ” says TU’s Nickum.

Some expect the U.S. Supreme Court to ultimately decide this case. Whatever the judicial outcome, however, Western Republicans may attempt to craft their will in Congress. “Representative McInnis is watching that case very carefully, and if the decision runs counter to what he thinks is proper, he stands ready to attack the issue legislatively,” says McInnis spokesman Josh Penry.

The White River Plan

Meanwhile, despite being sued for being timid about its responsibility, the Forest Service has stepped up its insistence upon its authority to require bypass flow, as revealed in the forest management plans. Whereas in the plan adopted in 1985, the White River only asserted that authority, the revised plan issued in 1999 called for a minimum of 10 percent of water being left in forest streams.

Colorado’s water establishment is clearly distressed, nowhere more so than at Glenwood Springs. There, with more water lawyers and hydraulic engineers per capita than any other town in the state, another part of this story can be noted.

The city gets its water primarily from Grizzly and No Name Creeks with rights filed about a century ago, (contemporaneous to creation of the national forest). Four miles and a thousand feet above I-70, where Grizzly Creek thunders down from the Flat Tops, the city has a concrete dam, a steel pipe, and a tunnel. Because all of this is on federal land, the city is required to get a special-use permit. Two years ago, when replacing some equipment, the city applied for a renewed permit.

The Forest Service agreed, but this time forest supervisor Martha Ketelle asked that the city “negotiate” with the agency for bypass flows. The city owns 20 cubic feet per second of water. That’s enough to probably dry up Grizzly Creek in low-flow months. Aquatic biologists are deciding how much water should remain in the creek. “It’s our responsibility to ensure the viability of public lands,” says Ketelle.

This water supply easily meets the needs of Glenwood’s 9,200 full-time residents, plus the town’s sizable summer crowds. At issue is a series of futuristic ifs. If a drought year arrives, if the city is forced to comply with bypass flows to keep water in Grizzly Creek, and if the town’s population has grown considerably….

If all this happens, Glenwood could conceivably have to invest millions in a supplemental water supply, says Chris Treese, spokesman for the Glenwood-based Colorado River Water Conservation District. Robin Millyard, public works director for Glenwood, won’t predict that. “It has the potential to impact, but the magnitude? I’m not going to speculate,” he says.

Colorado’s Solutions

Bypass opponents say Colorado should rely upon the state’s minimum instream flow requirements. That program worked to defeat a water-development proposal that would have impaired the beauty of Hanging Lake, which is also in Glenwood Canyon.

However, in most cases the state’s minimum instream flow requirements are junior, as in the 3 cfs at Grizzly Creek, which was appropriated in 1985. Thus in drought years, a user with more senior rights could lawfully run the creek dry.

Another approach, advocated by U.S. Senator Wayne Allard, is for the federal government to buy water rights. To ensure water in streams at the new Great Sand Dunes National Park, Congress is doing just that. “All that Senator Allard is asking is that the federal government go through the same process that you or I or anybody else out there has to go through,” says Allard’s press secretary, Sean Conway.

This year McInnis, Allard, and other Colorado Republicans have stepped up their attack of bypass flows. A subcommittee chaired by McInnis during May called on Forest Service officials to explain where they are headed.

Agency representatives waffled. They defended at least sparing use of the policy, but also gave Republicans hope that the agency, under new chief Dale Bosworth, will agree not to exact bypass authority on existing diversions, such as at Grizzly Creek, and thereby apply it only on new diversions.

“It was an opening salvo in this debate to let the administration know it is a hot issue, and we’re not going to go away,” Penry said in explaining the reason for the hearings. McInnis and other Republicans remain hopeful, seeing in Bosworth “values that are a lot closer to the mainstream than the previous regimes.” However, the Republicans also see “a lot of people in that agency who are wedded to this policy. It has created a bit of inertia within the agency.”

This is a great deal of fuss about an authority that, according to a count conducted by Trout Unlimited, the Forest Service has required only 15 times for the 8,000 special-use permits involving water given to towns, ranchers, and others. However, as illustrated by the Grizzly Creek and Homestake cases, the Forest Service is now asking for bypass flows more often.

The Real Issues</P>

In fact, people on both sides of this issue agree that the issue is, at the moment, largely theoretical. The dispute is about the future, when water scarcity increases as the West fills up with people.

“The real issue is one of control,” says Bennett Raley, a Denver-based water lawyer who recently was appointed to a position in the Interior Department. “As a state, we have spent, over the years, hundreds of millions of dollars in adjudicating the water system. If bypass flows can be imposed by the Forest Service with respect to water on the national forest, those water rights are meaningless.”

It is, adds Raley, “like having a traffic law that says you can yield to the right, and another set of laws that says you can yield to the left. You can’t have both, because you’ll have a wreck.”

Steve Maloch, counsel for Trout Unlimited, sees a different pivotal question. That is whether Western laws developed during mining booms of the 19th century will serve those states during the 21st century as migrations premised on recreational and environmental quality swell populations.

Our system of first-in-time, first-in-right created by California ’49ers to prevent miners from shooting each other (and a system later perfected in Colorado) sees water left in streams as wasteful, he says. The law cannot accommodate new recreational and environmental values that prize water remaining in streams.

“It is fair to ask where will the water come from for future population and economic growth, and the answer for 150 years has been, ‘Go dam another river, go build another canal and develop new water supplies,'” he says. “But we have come to the end of that era, and changing to a new system of developing water supplies is hard.”

Allen Best, who lives in Arvada when he’s not working in the mountains, is worried about appeareance of conflict of interest, since he’s now doing some writing work for the U.S. Forest Service. This article was written before he took that position, or indeed, even before he applied.