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72-514 PS 2001

‘‘BYPASS FLOWS’’ ON NATIONAL

FOREST LANDS

JOINT OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON FORESTS AND

FOREST HEALTH

AND THE

SUBCOMMITTEE ON WATER AND POWER

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

May 22, 2001

Serial No. 107-31

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Allen D. Freemyer, Chief of Staff

Lisa Pittman, Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeff Petrich, Democrat Chief Counsel

(III)

SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

SCOTT McINNIS, Colorado, Chairman

JAY INSLEE, Washington, Ranking Democrat Member

John J. Duncan, Jr., Tennessee

John E. Peterson, Pennsylvania,

Vice Chairman

Mark E. Souder, Indiana

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Dale E. Kildee, Michigan

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

Anibal Acevedo-Vila, Puerto Rico

Betty McCollum, Minnesota

SUBCOMMITTEE ON WATER AND POWER

KEN CALVERT, California, Chairman

ADAM SMITH, Washington, Ranking Democrat Member

Richard W. Pombo, California

George Radanovich, California

Greg Walden, Oregon,

Vice Chairman

Michael K. Simpson, Idaho

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

George Miller, California

Peter A. DeFazio, Oregon

Calvin M. Dooley, California

Grace F. Napolitano, California

James P. McGovern, Massachusetts

Hilda L. Solis, California

Brad Carson, Oklahoma

(V)

CONTENTS

Page

Hearing held on May 22, 2001 ............................................................................... 1

Statement of Members:

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado ................. 2

Prepared statement of ............................................................................... 3

Newspaper article ‘‘Water rights again at issue’’ submitted for the

record ...................................................................................................... 5

Newspaper article ‘‘Feds again trying to usurp historic state water

rights’’ submitted for the record ........................................................... 6

Newspaper article ‘‘Bypass flow a threat to our water rights’’

submitted for the record ........................................................................ 7

Letter from Jon Monson, Director, Greeley Water and Sewer

Department, Greeley, Colorado, submitted for the record ................. 8

McInnis, Hon. Scott, a Representative in Congress from the State of

Colorado ......................................................................................................... 20

Prepared statement of ............................................................................... 22

Letter to Senator Hank Brown from Secretary of Agriculture Edward

Madigan submitted for the record ........................................................ 65

Letter from David Nickum, Colorado Trout Unlimited, et al.,

submitted for the record ........................................................................ 63

Letter from Dr. N. LeRoy Poff, Colorado State University, submitted

for the record .......................................................................................... 67

Udall, Hon. Mark, a Representative in Congress from the State of

Colorado ......................................................................................................... 23

Prepared statement of ............................................................................... 24

Statement of Witnesses:

Brown, Hon. Hank, Former Senator from Colorado and President,

University of Northern Colorado ................................................................. 14

Prepared statement of ............................................................................... 16

Gauvin, Charles, President, Trout Unlimited, Inc. ....................................... 48

Prepared statement of ............................................................................... 50

Getches, Professor David, ‘‘Bypass Flows’’ Congressional Task Force

Member .......................................................................................................... 38

Prepared statement of ............................................................................... 39

Holsinger, Kent, Assistant Director, Colorado Department of Natural

Resources ....................................................................................................... 25

Prepared statement of ............................................................................... 28

Article ‘‘Buying Water Rights For Instream Flows: An Opportunity

to Resolve Environmental Conflicts’’ submitted for the record .......... 26

Lynch, Robert S., ‘‘Bypass Flows’’ Congressional Task Force Member ........ 45

Prepared statement of ............................................................................... 46

Phillips, Randy, Deputy Chief, Programs and Legislation, Forest Service,

U.S. Department of Agriculture ................................................................... 18

Prepared statement of ............................................................................... 19

Treese, Chris, External Affairs, Colorado River Water Conservation

District ........................................................................................................... 55

Prepared statement of ............................................................................... 57

(1)

JOINT OVERSIGHT HEARING ON ‘‘BYPASS

FLOWS’’ ON NATIONAL FOREST LANDS

Tuesday, May 22, 2001

U.S. House of Representatives

Subcommittee on Forests and Forest Health and

Subcommittee on Water and Power

Committee on Resources

Washington, DC

The Subcommittee met, pursuant to call, at 3:30 p.m., in Room

1334, Longworth House Office Building, Hon. Scott McInnis [Chairman of the Subcommittee] presiding.

Mr. MCINNIS. The Subcommittee on Forests and Forest Health is

now called to order.

Because of the schedule of the afternoon, we are going to alter

our schedule significantly. We expect votes in 1 hour, which could

run well past 5 o’clock, which means that we have 1 hour to conclude this hearing.

So what I intend to do is, I intend to call the first three witnesses. I will wait for the Ranking Member to show up before we

give opening statements.

So between the first panel, which would be, of course, Senator

Allard, former Senator Hank Brown, and Randy Phillips, in between the first panel and what is now going to be called the second

panel, both the Ranking Member and I will give opening statements.

Unfortunately, with the time restriction, I can either do one of

the two. I can either allow questioning by the Committee or I can

allow our witnesses to testify. So under the discretion of the Chair,

I am going to forfeit any questioning by the Committee. We will

only take testimony from witnesses.

The reason for that, of course, is that we have witnesses—Mr.

Treese, for example, who has traveled half way across the country

today to testify in front of us. And Mr. Treese is the last one for

witness testimony.

Which means that if we took questions, Mr. Treese, you and others would not have an opportunity to testify after you made this

effort to come half way across the country to testify. I am not going

to subject you to that.

So that is what we are going to do. We will begin with our first

witness.

2

Senator Allard, I am not sure how, up in your country, you yield

to rank, whether you consider the former senator, your predecessor,

ranking, but I will let the two of you—

[Laughter.]

Senator Allard, you may proceed with your statement.

Senator ALLARD. First of all, I—

Mr. MCINNIS. Thank you very much, by the way, for coming. We

appreciate it.

STATEMENT OF WAYNE ALLARD, A UNITED STATES SENATOR

IN CONGRESS FROM THE STATE OF COLORADO

Senator ALLARD. Thank you, Mr. Chairman.

First of all, I am just delighted to have sitting on my right side

here former Senator Hank Brown.

And if it is all right with the Chair, what I would like to do is

submit my entire testimony for the Committee. And then there are

some other provisions with my testimony that I wish the Chairman

would make a part of the Committee record.

One of them is an editorial from the Greeley Tribune dated

April 4, and an op-ed by yourself and me in the Rocky Mountain

News dated April 10, and another op-ed by Congressman Schaffer

and myself in the Greeley Tribune. These are on bypass flows.

Mr. Chairman, first of all, I want to thank you.

Again, I am going to shorten my testimony considerably because

of the constraints of your Committee time, and I certainly appreciate those. And those people who traveled a long ways need to

have time to get back.

Many westerners, I believe, appreciate what we have in the State

of Colorado, as far as water law is concerned. And basically, in the

West, what we have is a water policy that is directed by the states.

And Colorado, actually, has been pretty effective in setting up a

program where they can manage their instream flows to protect

Colorado’s rivers from future development.

We have a basic, underlying philosophy that anybody who wants

to use that water simply needs to go through our water courts, justify their need, verify that they will not injure any other water

users that are relying on that water for their livelihood or for green

parks in cities or other needs within the state.

Since 1990, the United States Department of Agriculture has attempted to use some their Federal land-use permitting authority to

require that that water be turned over to them. And this is contrary to what we do in the State of the Colorado and many Western

States.

And, actually, as late as 1997, there was a task force that was

convened to evaluate this policy. And it was determined that there

was no authorization in any legislation giving them that authority.

This has concerned many of us. In 1991, under then-Secretary of

Agriculture Madigan, he issued a department directive codifying

the historical Forest Service policy against imposing bypass flows.

And then in 1993, the directive was secretly repealed.

And we got into the closing months of the Clinton Administration, and once again, the intent to require water bypass flows for

existing water facilities was beginning to be implemented.

3

So now here we are, and I am just here to ask the Committee

to move forward in any attempt that you deem appropriate to try

and restrain the activities of the Forest Service from taking this

very valuable property right in the State of Colorado, and to recognize that the states have a role that does protect the environment,

that protects private property rights, allows for a lot of local input.

And with that, I will conclude my testimony.

[The prepared statement of Senator Allard follows:]

Statement of The Honorable Wayne Allard, a U.S. Senator from the

State of Colorado

Thank you Chairman McInnis and Chairman Calvert for holding today’s oversight

hearing concerning the United States Forest Service’s use of water bypass flows. I

appreciate the opportunity to speak to you today on this important issue.

Many westerners believe that Colorado and the states, not Washington, should establish state water policy. We know that Colorado already has an effective in-stream

flow program in place to protect Colorado rivers from future development. We believe that if the Forest Service wants to increase flows in rivers that cross National

Forests, it should work with Colorado’s and other states’ in-stream programs and/

or purchase additional water rights consistent with western water law.

Since approximately 1990, the United States Department of Agriculture, Forest

Service, has attempted to use federal land use permitting authority to require that

the owners of existing water supply facilities located on National Forest lands relinquish a part of the water supply that would otherwise be provided from these facilities. While this controversy originated in Colorado, information provided to a congressional Task Force convened in 1997 revealed that conflicts with the Forest Service exist in other states in the West, including Montana, Arizona, Idaho and Nevada.

To understand the bypass flow controversy it’s important to realize that much of

Colorado’s municipal and agricultural water is stored in high-mountain reservoirs.

Much of this water is released and diverted on or across Forest Service property.

While no one argues that the Forest Service has legitimate interests when considering new or future water projects, it is a different matter entirely to condition permit renewal on water forfeiture.

Water users in the Cache La Poudre basin with permits up for renewal negotiated

a settlement with the Forest Service. This Joint Operating Agreement actually put

much more water into more than 70 miles of Colorado’s only scenic and wild river

(in critical winter months) than the bypass flows considered by the Forest Service.

The negotiated agreement was praised by everyone from the State of Colorado to

the Denver Post. Yet it was immediately dragged into court by environmental

groups which published pictures of less than one mile of the Poudre River that

would not have been helped by the agreement.

At the federal level, bypass flow arguments became so heated that in 1992 then

Secretary of Agriculture Ed Madigan issued a departmental directive codifying historical Forest Service policy against imposing bypass flows. This directive was secretly repealed in the fall of 1993 without public or congressional input. This policy

change was not announced until nearly a year later by sheepish Forest Service personnel.

In the closing months of the Clinton Administration, the Forest Service once

again announced its intent to require water ‘‘bypass flows’’ for existing water facilities. This issue is of great importance to the West, as bypass flow requirements are

used to take water that is owned by cities and farmers without compensation, notwithstanding the fact that the Task Force found that Congress has not delegated

this authority to the Forest Service.

Since the new administration has taken office, I have requested that the Secretary of Agriculture Ann Veneman reinstate the historical policy of the Department, that the Forest Service may not impose water ‘‘bypass flows’’ and direct that

the Regions and the Office of the General Counsel follow this policy in all Forest

Plans and other decisions. In addition, I along with Senator’s Thomas, Enzi, Domenici and Crapo wrote to Attorney General John Ashcroft requesting that the historical policy be reinstated.

As you know, I have been involved with the debate over the attempts by the Forest Service to assert federal permitting authority over historical use for quite sometime now. The United States Congress has taken, and will continue to take an active role in monitoring how the Forest Service goes about obtaining water from ColoVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
4

rado water users. The Federal Water Rights Task Force was specific in its report

that requiring water users to relinquish part of their existing water supply, or

transferring of their water rights through the granting or renewal of federal permits

is not included in the Forest Service’s authority.

The real issue surrounding this debate is philosophical: Should the federal government or the state government control water resources in Colorado? As an avid fly

fisherman I am convinced that the State of Colorado has protected our rivers and

will continue to do so. That’s why I so strongly oppose allowing the Forest Service

to embark on this path.

[Senator Allard submitted the following newspaper articles and

letter for the record:]

1. Newspaper article ‘‘Water rights again at issue’’ 2. Newspaper article ‘‘Feds again trying to usurp historic state

water rights’’ 3. Newspaper article ‘‘Bypass flow a threat to our water rights’’ 4. Letter from Jon Monson, Director, Greeley Water and Sewer

Department, Greeley, Colorado.

5

6

7

8

9

10

11

12

13

14

Mr. MCINNIS. Thank you, Senator.

One of the advantages of having former Senator Brown return is

the institutional knowledge.

I know, Senator Brown, that you have done exhaustive research

and have extensive experience in Colorado water law. I appreciate

very deeply that you took away from your now nonpolitical life to

come back here and kind of refresh us on the institutional knowledge and the issues.

So, Senator, welcome back to your old digs. Appreciate you coming all this way. You may proceed.

STATEMENT OF FORMER SENATOR HANK BROWN,

PRESIDENT, UNIVERSITY OF NORTHERN COLORADO

Mr. BROWN. Thank you, Mr. Chairman.

Mr. Chairman, let me thank you for holding this hearing and reviewing this issue. I appreciate the Committee’s willingness to examine it.

I must say, I am personally delighted to see that the Merchant

Marine Committee was done away with. They deserved it a long

time ago.

[Laughter.]

And I think it is only fair that you acquired the Committee room.

Even though former Chairman Udall probably would be too modest

to want more Committee rooms than the one he had, I think it is

more than appropriate that we meet in this hearing room.

Mr. Chairman in three decades of viewing public issues and having some involvement in them, I do not know of a single area

where the Federal Government or a state government has acted

with more arrogance and deceit. I don’t say those words lightly.

They truly apply in this area.

What you have seen is one of the most outrageous approaches to

denying people their rights that I have ever witnessed.

This issue originally got started when the Forest Service attempted to expropriate—and I use that word because I believe it

applies—agricultural water rights. Rights of the farmers who

produce the food for this country.

Congressman Mike Strang, representing the west slope at that

time, became involved and ended the exploration. Thanks to his efforts and others in the Congress, it was solved.

And that is why, in the 1990’s, the Forest Service moved over to

attacking municipal water districts. These are primarily nonprofit

municipal water providers. What was involved was simply an extortion; that is, the cutoff of the renewal of a permit to cross Federal ground if you don’t forfeit a third of your water rights.

It is sad to report that a number of cities in Colorado literally

gave in because they didn’t have the money to fight. Even though

they were advised by the attorneys that they had a good case, they

didn’t have the money to fight it through courts.

What you have seen is the Forest Service literally take a position

they know is not sound in law. Their attorneys make filings that

are not honestly done and extort millions of dollars of water rights

from people or impose on them millions of dollars of attorneys fees

in a frivolous action.

15

To some extent, it has worked. You have had a number of cities

who simply didn’t have the means to fight the Forest Service and

concede.

At times the Forest Service, got their hand slapped, as they did

with agriculture. They backed off and said they wouldn’t do this

again. Then they turned around and did the same thing to municipalities.

When they did it with municipalities, we contacted Secretary

Madigan. He issued a direct order contravening their action. And

the Forest Service promised to end the practice, and then they

broke that promise again.

Mr. Chairman you asked the nominee for the assistant secretary

his exact position when he came up for confirmation. He misrepresented the truth of what they were going to do.

When my office found that the Forest Service had broken their

word, we offered a bill that would legislatively deal with this problem. And the Forest Service came and said that they would stop

this practice. They asked for a compromise, and the compromise

was a year moratorium with the issue being studied. They agreed

to abide by the results of the study.

Once again, the study came out with a majority vote, indicating

there was no legal basis for this action. The Forest Service indicated they would comply and then broke their word again.

I mention all of this background, Mr. Chairman, because I hope

this Committee will not be satisfied with assurances from the Forest Service.

In all due deference to the fine people that are here at the table

and others that will come from the Forest Service, they have not

stuck by their word. It would be very foolish for us to assume that

they are going to mean their word this time after they have broken

it so many times in the past.

Mr. Chairman, there are three thoughts I would like to leave

with this Committee.

One, this is not an issue that affects only western Colorado. If

you establish the position that you have a right to extort water

rights and drinking water from municipalities on the basis of renewing or not renewing a permit to cross Federal ground, every

major city in this country is at risk. Not just small towns in western Colorado that had to give up their water, but New York and

San Francisco and every other major one as well.

And whether it is a matter of crossing a Federal highway to deliver your drinking water or crossing a Forest Service area, all of

them are at risk. It is simply wrong to deny people their water

rights over renewal of a permit issue.

Secondly, Mr. Chairman, I hope very much that this Committee

will recognize what an important environmental issue this is. It is

an environmental issue. And tragically, the Forest Service has not

been able to understand the important environmental issue that is

here before you.

I do not come as someone late to the party in terms of environmental issues. I was a prime sponsor of Colorado’s conservation

trust fund. I was one of the prime sponsors of Colorado’s minimum

stream flow bill. So my interest in minimum stream flow in the forest and other parts of Colorado goes back a quarter of a century.

16

I was the prime sponsor of one of the state’s biggest wilderness

bills and the last large one that passed for Colorado. I was a prime

sponsor of the state’s only wild and scenic river bill. And I was the

prime sponsor of the state’s only heritage area bill.

I was the first in the delegation to advocate turning the Rocky

Mountain Arsenal into a wildlife sanctuary.

I come here with credentials that at least allow me to speak on

behalf of environmental concerns.

If the Forest Service has their way and diminishes or eliminates

water storage, which is what the purpose of this is, action—it is not

a bypass issue; this is an issue to eliminate water storage.

If they have their way, a consequence of their winning will be

simply this: You will have bigger runoffs in spring when you have

the floods. Having a flood is not a plus, environmentally. And you

will have lower minimum stream flow or no stream flow at all in

the winters.

It is very simple. If you reduce the amount you can store during

the spring runoff, you have more spring runoff and more floods.

And that water is not there in the fall and the winter of the year,

when you need the minimum stream flow to maintain aquatic life.

So it is a terribly important environmental issue. It is one I hope

this Committee will act on.

And finally, I hope this Committee will not be satisfied with Forest Service assurances this time. They have misrepresented their

intentions too many times. And I hope very much this Committee

will proceed with legislation that makes sure no community ever

faces this kind of extortion again.

Moreover, Mr. Chairman, I hope that at some point this Committee will also ask the cities that have faced such terrible consequences from this irresponsible action to come forward and that

you will compensate them for the misconduct of the Forest Service.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Brown follows:]

Statement of The Honorable Hank Brown, President, University of

Northern Colorado and Former United States Senator (Colorado)

Mr. Chairman and the Members of the Committee:

Thank you for the opportunity to testify this afternoon. In over three decades of

involvement in public issues I know of few incidences where a federal agency has

acted with greater arrogance and deceit, than the U.S. Forest Service action on the

so called ‘‘bypass flow’’ issue. Without legislative authorization the Forest Service

has literally used it’s power to deny the renewal of permits across federal ground

in an effort to extort drinking water from municipalities. They have taken our cities

property rights without compensation. They have thumbed their nose at legislative

intent and the public.

In the 1980’s when the Forest Service used these tactics against farmers Congressman Mike Strang won protection for agriculture and the issue was closed. Having failed in their effort to extort agricultural water the Forest Service turned its

attention to municipalities. In the early 90’s they succeeded in forcing some small

water districts and cities to forfeit up to a third of their water rights simply because

the non-profit water districts couldn’t afford the attorneys to defend themselves in

court.

In response to these tactics I had contacted the Regional Forester in Colorado.

The Forest Service was unable to identify any legal basis for the water takings. Despite the fact they had no legal basis they continued in their efforts to demand a

third of the cities water in exchange for continuation of the permits to cross federal

ground. Faced with the potential loss of their drinking water many cities felt they

had no choice, but to forfeit their rights.

17

I contacted the Secretary of Agriculture and outlined the abuse that had been taking place. Secretary of Agriculture, Madigan responded by a clear directive to the

Forest Service to cease the practice of extorting water from municipalities. The Forest Service promised they would follow the Madigan directive, but in 1993 and 1994

they broke their word and returned to their old ways. Doing the opposite of Secretary Madigan’s directive the Forest Service renewed its efforts to extort water

rights from non-profit water districts.

Faced with this flip-flop by the Forest Service, I offered legislation to end this extortion. With the likely passage of the legislation the Forest Service again reversed

courses and agreed to stop withholding permit renewals and abide by the results

of an independent review of experts on the water law. The panel that came in to

being in response to the one-year moratorium found that there was no legal basis

for the Forest Service action. Many assumed that the crisis was over, and the Forest

Service indicated they would abide by the findings. But again the Forest Service reversed itself and broke its word by resuming it’s program of taking water rights.

Mr. Chairman, there are three points that I would like to leave you with this

afternoon: This is an issue that is of importance to every American whether you live

in San Francisco, New York or even a small town in western Colorado. Your drinking water supply most likely crosses federal ground at some point on its way to your

home. If an agency can arbitrarily cut off your ability to cross federal ground all

of us are at risk. An easement for water lines shouldn’t be withheld to appropriate

water rights, whether it involves crossing under a federal highway in New York or

crossing a forest in Colorado.

Secondly, I would hope this committee would not be satisfied with assuredness

from the Forest Service that they will end this abusive practice. The Forest Service

has promised to end this practice numerous times and each time has broken its

word. I hope you will pass new legislation ending this extraordinary practice of

withholding the renewing of permits.

Finally, Mr. Chairman I want to suggest to the committee that this is an important environmental issue and that eliminating existing water storage projects,

which appears to be the goal of the Forest Service, would increase flood flows in

the springs and result in lower flows in our streams during the dry periods of the

year. The Forest Service actions clearly endanger wildlife and fish populations.

Their policy should be rejected because it harms our environment. Sadly the Forest

Service seems oblivious to the true consequences of their actions.

As the author and prime sponsor of Colorado’s Conservation Trust Fund Bill and

coauthor of the state’s Minimum Stream Flow Bill I have demonstrated record of

concern in this area. I was the sponsor of Colorado’s first Wild and Scenic river and

Colorado’s only federal heritage area. I was the first member of the Colorado delegation to actively work to turn the Rocky Mountain Arsenal into a wildlife sanctuary

and along with Senator Wirth was the prime sponsor of our most recent and one

of Colorado’s largest wilderness areas. The Forest Services actions will diminish

minimum stream flow and harm the environment. I hope you will end their practice

of ‘‘bypassing’’ people’s rights.

Mr. MCINNIS. Thank you, Senator.

And, again, I want to emphasize also to you how much I appreciate you coming half way across the country. I know that your beliefs are very deeply founded in regard to this issue.

So once again, on behalf of the Committee, I appreciate your testimony today. Thank you for your appearance.

Next, we are going to go to Mr. Phillips.

Mr. Phillips, before you proceed, I did have an opportunity to

read your testimony, and I didn’t find in your testimony at any

point exactly where the position of the Forest Service was, specifically in regard to whether they are going to follow the Madigan letter or not.

So during your comments, I would suspect you are probably

going to read from your statement. I would appreciate you incorporating that position within it.

Mr. Phillips, thank you for coming today, and you may proceed.

18

STATEMENT OF RANDY PHILLIPS, DEPUTY CHIEF, PROGRAMS

AND LEGISLATION, USDA FOREST SERVICE

Mr. PHILLIPS. Thank you, Mr. Chairman.

First, let me apologize for getting the testimony to you so late.

We were developing our testimony on fairly short notice, so we will

try not to let happen that again.

But I am here to represent the views of the Department and the

Forest Service regarding the use of bypass flows in the management of our national forest lands.

The bypass flow issue has raised considerable concerns among a

number of water users in the West, particularly in this year with

a low snow pack.

As you know, the Forest Service is currently involved in litigation over the use of bypass flow. While this suit prevents a discussion of the matters related to the litigation, I do want to share with

the Committee the agency’s policy views.

The Secretary has received several letters from Members of Congress requesting the direction established by Secretary Madigan in

an October 6, 1992, letter to Senator Hank Brown be reinstated.

A written response to these letters is forthcoming.

The Administration is reviewing the direction in this letter suggested and will consider the benefits and costs of a change from

current policy.

I want to state that it is the Forest Service policy and custom

to work collaboratively with water facility permit holders to ensure

that these authorizations appropriately consider environmental values while enabling permittees to operate and maintain their water

facilities.

The Forest Service’s water policy manual dated May 1974 and

amended in 1980 states the Forest Service in all matters related

to water use and water rights will endeavor to work cooperatively

with the states. Such cooperation will recognize the state’s authority and responsibilities for allocation of waters with the state and

the need for the state to be informed as to uses and future needs

of the water on the national forests.

This policy guidance also states even though a beneficial use of

water on national forest system lands is made by a permittee in

connection with the use and occupancy of such lands, the regional

forester retains the authority to make discretionary determinations

of needed management actions in accordance with the rules and

regulations for the use and occupancy of these lands.

It is therefore the responsibility of the regional forester to work

with the state permittees and other interested parties to resolve

issues related to the reauthorization of water facility permits.

On November 30, 2000, the Forest Service completed a paper entitled, ‘‘Water for the National Forest and Grasslands; Instream

Flow Protection Strategies for the 21st Century.’’

The purpose of this paper was to inform national forest managers of currently available tools for use in dealing with a variety

of instream water flow issues to encourage more collaboration with

state, tribal, and local officials on these issues and to discuss recent

court rulings involving agency instream flow claims. The white

paper is currently under review.

19

The Forest Service recognizes the sensitivity of the bypass flow

issue in its dealings with thousands of permit holders, and the

agency is committed to working with states, permittees, interested

parties, and the Congress to address concerns associated with

water facility authorization.

Mr. Chairman, I think it is important to understand that while

the Administration and the Forest Service has not completed a

comprehensive approach to water management, the agency will approach water supply reauthorizations using the principles described in the Madigan letter.

We feel it is undesirable to develop a unilateral approach to require bypass flows when other solutions are generally available.

If you look at the history behind the use of bypass flow restrictions, they are very minimal in their use. Out of roughly 8,000 permits, I believe there only 13 cases where bypass flow restrictions

have been used.

This completes my statement, Mr. Chairman.

[The prepared statement of Mr. Phillips follows:]

Statement of Randy Phillips, Deputy Chief, Forest Service,

U.S. Department of Agriculture

Members of the Committee, thank you for the opportunity to appear before you

today. I am Randy Phillips, Deputy Chief for Programs and Legislation, USDA Forest Service. I am here today to present the views of the Department regarding the

use of bypass flows in the management of national forest lands.

Introduction

The bypass flow issue has raised considerable concerns among a number of water

users in the West, particularly in this year of unusually low snow pack. As you

know, the Forest Service is currently involved in litigation over the use of bypass

flow. While this suit prevents a discussion of matters related to the litigation, I

would like to share with the Committee the agency’s policy views.

Madigan Letter

The Secretary has received several letters from Members of Congress requesting

the direction established by Secretary Madigan in an October 6, 1992 letter to Senator Hank Brown be re-instated. A written response to these letters is forthcoming.

The Administration is reviewing the direction that this letter suggested and will

consider the benefits and costs of a change from current policy.

Collaboration

It is Forest Service policy and custom to work cooperatively with water facility

permit holders to ensure that these authorizations appropriately consider environmental values while enabling permittees to operate and maintain their water facilities. The Forest Service’s water policy manual dated May 1974, and amended in

1980, states ‘‘The Forest Service in all matters related to water use and water

rights, will endeavor to work cooperatively with the States. Such cooperation will

recognize the State’s authority and responsibilities for allocation of waters within

the State, and the need for the State to be informed as to uses and future needs

of water on the National Forests.’’ This policy guidance also states: ‘‘Even though

a beneficial use of water on National Forest System lands is made by a permittee

in connection with the use and occupancy of such lands, the Regional Forester retains the authority to make discretionary determinations of needed management actions in accordance with the rules and regulations for the use and occupancy of

these lands.’’ It is therefore the responsibility of the Regional Forester to work with

the State, permittees, and other interested parties to resolve issues related to the

re-authorization of water facility permits.

On November 30, 2000, the Forest Service completed a white paper titled ‘‘Water

for the National Forests and Grasslands: Instream Flow Protection Strategies for

the 21st Century.’’ The purpose of this paper was to inform national forest managers of currently available tools to use in dealing with a variety of in-stream flow

water issues, to encourage more collaboration with State, tribal and local officials

20

on these issues, and to discuss recent court rulings involving agency in-stream flow

claims. This white paper is currently under review.

Conclusion

The Forest Service recognizes the sensitivity of the bypass flow issue in its dealings with thousands of permit holders. The agency is committed to working with

States, permittees, interested parties, and Congress to address concerns associated

with water facility re-authorization. We believe, however, that any course we choose

will inevitably require local people to work together to find common sense solutions.

This concludes my testimony. I would be happy to answer any questions that you

may have.

Mr. MCINNIS. Thank you, Mr. Phillips.

Mr. Phillips, in your testimony, I guess the response to my request in your testimony was that you are going to follow the principles of the Madigan letter, which moves you from the previous

administration policy. Is that what you were trying to say the in

statement or intended to say?

Mr. PHILLIPS. I did intend to say it. And I would also add that

it is interesting to note that while the Madigan letter was rescinded by Secretary Espy, from everything I can tell, the Forest

Service never received any instructions from the department related to that action.

Mr. MCINNIS. So meaning that it could still be in effect?

Mr. PHILLIPS. Well, I don’t know that for a fact.

Mr. MCINNIS. All right.

Mr. PHILLIPS. I just wanted you to be aware of that.

Mr. MCINNIS. Mr. Phillips, you were here and heard my previous

statement in regard to the testimony and the restriction on questioning. I would appreciate it, since you are representing the principal agency, if you could remain, because if we do have time at the

conclusion of the witness statements, I then will open it up to the

panel to ask questions. And I am sure you would probably be one

of their priorities to ask questions to.

Mr. PHILLIPS. I would be happy to.

Mr. MCINNIS. Thank you, Mr. Phillips.

Mr. Inslee, prior to your arrival, in order to accommodate our

witnesses—you have been updated by staff.

At this point, I thought that you and I would each give opening

statements. I will proceed and then turn it over to the Ranking

Member, Mr. Inslee, to give his opening statement.

Then we will proceed with our second panel. While we are giving

the opening statements, it would probably be helpful, for time consideration, if the second panel could go ahead and take their seats.

It would be Mr. Holsinger, Mr. Getches, Mr. Lynch, Mr. Gauvin,

and Mr. Treese. I think I have everybody on the second panel. Is

that correct?

STATEMENT OF THE HONORABLE SCOTT MCINNIS, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

COLORADO

Mr. MCINNIS. I called the joint Committee hearing today on Forests and Forest Health and Water and Power to conduct oversight

on the use of the so-called bypass flows on national forests lands.

As I have said on a number of occasions before, I believe that the

Forest Service coercive of practice of tying bypass flow restrictions

21

to land use authorization for existing water facilities represents

probably the single-largest threat to water users in Colorado and,

indeed, throughout the West and, in fact, throughout the entire

country.

I would point out that Senator Brown said in his comments that

even in the East, where you do not have large holdings of public

lands, you could very well have a bypass flow issue come up if you

had to cross a Federal highway.

In my mind, this policy looks like an awful lot of Federal

greenmail. I, too, like Senator Brown, say that word with a great

deal of thought and with restraint.

In practical terms, what the policy means is this: If you are a

municipality or a farmer or a rancher, and you rely on a diversion

or a ditch or a pipeline located within public lands for your drinking water or for other purposes, you are at risk to this policy.

You see, every 10 to 15 years the Forest Service requires as a

routine these permittees to renew their permit for diversion or

ditch or pipeline. Under the Federal bypass flow program, the Forest Service can say to water users, ‘‘Sure, we will renew the permit

for your ditch. But in return, we want 10, 15, 25, or even 50, percent of your annual water yield.’’

It doesn’t matter if your diversion is 50 years old and you have

had a number of permits issued on a routine basis. And it doesn’t

matter if your water rights are a century old. Under this policy the

Federal Government has exercised the questionable authority to

the effect that it puts them in a position to demand greenmail or

greenwater or whatever you want to call it out of a portion or taking of your legal water rights.

That policy should not be coming from the government of the

United States of America.

This policy represents a seismic shift in 135 years, meaning the

policy of exercising a bypass flow confiscation of water rights. It

represents a huge shift in 135 of Federal policy and obviously contrary to the Madigan letter of which we have previously spoken.

As my colleagues know, since 1866, the Congress has shown near

total deference to states in allocation and administration of water

resources. Time and time over, Congress and the courts have made

it exceedingly clear that when the Federal Government wants

water, it has to get in line just like every other water user in

America.

The Forest Service bypass flow policy of the previous administration blatantly runs afoul of this fundamental legal document.

Having said that, I am sympathetic and, indeed, very supportive

of efforts to protect the health and vitality of our nation’s rivers

and streams.

In Colorado, the Colorado Water Conservation Board, of which I

am familiar with in great detail, and the Colorado River Water

Conservation District, which is represented here today by Mr.

Treese, have done an outstanding job in promoting this crucially

important objective.

If there are ways the Forest Service can provide assistance and

support in these community-based efforts, I am all for it. And I am

certainly open to suggestions.

22

But a command and control approach to imposing bypass flows

will never be acceptable.

Keep in mind that in the East you often file lawsuits to get rid

of water. In the West, water runs like blood.

A final point I would like to make is on a local note, but I think

it is instructive on a much larger scale. When the forest planners

on the White River National Forest, which is located in the heart

of western Colorado, which also is in the heart of my congressional

district, released their preferred forest plan revisions, there was

not even a mention of the yeoman’s effort of organizations like the

Colorado Water Conservation Board and the Colorado Water Conservation District and myself in my own forest plan that I submitted to protect instream flow values.

Instead of signaling an intent to work cooperatively with these

distinguished organizations, the Forest Service instead issued an

inflexible maxim in its standards and guidelines, dictating that the

bypass flows shall be imposed irrespective of what state water

users are doing to promote the same values.

I look forward to hearing what the Forest Service says in the future about this. I am particularly interested in the statements

made by the chief last week in front of this Committee that the

Forest Service would work cooperatively with affected state and

local entities on this important issue.

That concludes my opening statement.

[The prepared statement of Mr. McInnis follows:]

Statement of The Honorable Scott McInnis, Chairman,

Subcommittee on Forests and Forest Health

I called this joint hearing of the Subcommittees on Forests and Forest Health and

Water and Power to conduct oversight over the use of so-called ‘‘bypass flows’’ on

National Forest Lands. As I have said on a number of occasions before, I believe

that the Forest Service’s coercive practice of tying bypass flow restrictions to land

use authorizations for existing water facilities represents the single largest threat

to water users in Colorado and indeed throughout the West. In my mind, the policy

looks an awful lot like federal blackmail.

In practical terms, what the policy means is this: if you’re a municipality or a

farmer or a rancher and you rely on a diversion or a ditch or a pipeline located within a National Forest for your drinking water, you are at risk to this policy. You see,

every 10 or 15 years, the Forest Service requires these permittees to renew their

permit for their diversion or ditch or pipeline. Under the federal bypass flow program, the Forest Service can say to water users: ‘‘Sure, we’ll renew your permit for

your ditch, but in return, we want 10–15–25-even 50% of your annual water yield.’’

It doesn’t matter if your diversion is 50 years old and your water rights are a century old—under this policy, the federal government has the authority to, in effect,

blackmail you out of a massive portion of your legally held water rights.

This policy represents a seismic shift in a 135 years of federal water policy. As

my Colleagues know, since 1866 Congress has shown near total deference to the

States in the allocation and administration of water resources. In Act of Congress

after Act of Congress and court decision after court decision, Congress and the

Courts have made it exceedingly clear that when the federal government wants

water, it has to get in line just like every other water user in America. The Forest

Service bypass flow policy blatantly runs afoul this fundamental legal doctrine.

Having said that, I am sympathetic, and indeed very supportive, of efforts to protect the health and vitality of our nation’s rivers and streams. In Colorado, the Colorado Water Conservation Board and the Colorado River Water Conservation District

have done an outstanding job in promoting this crucially important objective. And

if there are ways the Forest Service can provide assistance and support in these

community-based efforts, I’m all for it and I’m certainly open to suggestions. But

a command and control approach to imposing bypass flows will NEVER be acceptable.

23

A final point I would like to make is on a local note, but I think its instructive

on a larger scale. When the forest planners on the White River National Forest—

located in my district in the heart of western Colorado—released their preferred forest plan revisions, there was not even a mention of the yeoman’s effort of organizations like the Colorado Water Conservation Board and the Colorado River Water

Conservation District to protect instream flow values. Instead of signaling an intent

to work cooperatively and collaboratively with these distinguished organizations, the

Forest Service instead issued an inflexible maxim in its standards and guidelines

dictating that bypass flows SHALL be imposed, irrespective of what State water

users are doing to promote the same values. I look forward to hearing what the Forest Service intends to about this, particularly in light of statements made by the

Forest Chief last week in front of this committee that the Forest Service would work

cooperatively with affected state and local entities on this important issue.

Mr. MCINNIS. I now recognize the Ranking Member, Mr. Inslee,

for his statement.

Mr. Inslee, you may proceed.

Mr. INSLEE. If I may defer to my colleague from Colorado, Mr.

Udall, I would be happy to do that.

Mr. MCINNIS. That is certainly appropriate.

Mr. Udall?

STATEMENT OF THE HONORABLE MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

COLORADO

Mr. MARK UDALL. I thank my colleague from Washington. I

thank the Chairman for the time.

Mr. Chairman, I don’t know that I have seen so many Coloradans in a room since I last sat in the statehouse in the agriculture, livestock, and resources Committee. But it is great to see

all of you here today.

I will keep my remarks brief. And I would ask unanimous consent that my total statement be included in the record, Mr. Chairman.

Mr. MCINNIS. Without objection, so ordered.

Mr. MARK UDALL. I want to listen closely to what each person

today has to say. And I hope that everyone here will do that as

well. This is an important topic.

My hope is that the hearing will give us a chance to better understand all the aspects of this issue and also the different points

of view. I say that because I know how divisive this issue or any

issue related to water and water rights can be in the West, and especially in Colorado.

From my brief acquaintance with this issue, it seems that it has

many of the elements that make for heated controversies in our

state.

To begin with, it involves water; that means that it will attract

attention, even though the Forest Service has not called for bypass

flows very often.

In fact, I understand that out of more than 8,000 water facilities

on national forest lands that there have been only 15 or so times

that the Forest Service have called for bypass flows.

Still, anything involving water in Colorado is important. As the

Chairman pointed out, Coloradans often say that water is the lifeblood of our state, and that is certainly true.

24

We are an arid state. The mountains catch the snows of winter,

but you can’t make a living selling umbrellas because it doesn’t

rain very often. So our agriculture and our cities depend on access

to water from Colorado’s snow-fed streams and rivers.

But that same water is also the lifeblood of our forests and the

range lands and other species with whom we share our state. So

there are, of course, a variety of interests that must be considered.

In addition, the bypass flow question is a legal issue that is complicated because it involves the sensitive matter of relations between the Federal and state governments. And on that aspect of

the matter, we will be hearing from some real experts today.

I am not a lawyer, and I am certainly not an expert in the fine

points involved here. But I do know one thing for sure, and that

is, trying to resolve these issues through confrontation and litigation is tempting but often not very productive or satisfactory for

anyone.

Usually it is better in the long-run for people to sit down and explore their differences and try to find more constructive ways to resolve them.

Some of the testimony notes that the city of Boulder, which I represent, and the Forest Service sat down with regard to the city’s

need to build a pipeline to bring water across the Arapaho-Roosevelt National Forests. And thanks in part to the work by my

predecessor, Congressman Skaggs, the city of Boulder and Forest

Service were able to reach an agreement that met the needs of both

parties.

Now, in fairness, this particular approach may not work in other

situations, but I think it does show that if there is willingness on

the part of everybody involved to sit down and work together, it is

possible to find some common ground.

So, Mr. Chairman, to conclude, I am here mostly to listen and

to learn, and I hope the hearing will help us identify some ways

that we can work together whenever possible, rather than putting

our energies into fighting each other.

So thank you very much.

[The prepared statement of Mr. Mark Udall follows:]

Statement of The Honorable Mark Udall, a Representative in Congress

from the State of Colorado

Mr. Chairman, I appreciate having this opportunity to hear from our witnesses.

I plan to listen closely to what each witness has to say, and I hope that everyone

else here will do that too—because this is an important topic.

I hope that the hearing will give us a chance to reach a better understanding of

all aspects of this issue and also of the different points of view.

I say that because I know how divisive this issue—or any issue related to water

and water rights—can be in the west, and especially in Colorado.

From my brief acquaintance with this issue, it seems that it has many of the elements that make for heated controversies in our state.

To begin with, it involves water. That means that it will attract attention—even

though the Forest Service has not called for bypass flows very often.

In fact, I understand that out of more than 8000 water facilities on national forest

lands, there have been only 15 or so times that the Forest Service has called for

bypass flows.

Still, anything involving water is important in Colorado.

Coloradans often say that water is the lifeblood of our state—and that is true.

We are an arid state. The mountains catch the snows of winter, but you can’t

make a living selling umbrellas because it doesn’t rain very often.

25

So, our agriculture and our cities both depend on access to water from Colorado’s

snow-fed streams and rivers.

But that same water is also the lifeblood of the forests and the rangelands—and

the other species with whom we share our state.

So, there are a variety of interests that must be considered.

In addition, the ‘‘bypass flow’’ question is a legal issue that is complicated because

it involves the sensitive matter of relations between the federal and state governments.

On that aspect of the matter, we will be hearing from some real experts today

I am not a lawyer, and I certainly am not an expert in the fine points involved.

But I do know one thing for sure—and that is that trying to resolve these issues

through confrontation and litigation is tempting but often not very productive or

satisfactory for anyone.

Usually, it is better in the long run for people to sit down and explore their differences and try to find more constructive ways to resolve them.

For example, as noted in some of the testimony, that has been the approach taken

by the City of Boulder and the Forest Service with regard to the city’s need to build

a new pipeline to bring water across the Arapaho–Roosevelt National Forest.

Thanks in part to work by my predecessor, Congressman Skaggs, the city and the

Forest Service were able to reach an agreement that met the needs of both parties.

That particular agreement may not work as well in other cases. But I think it

does show that if there is a willingness on both sides to listen and to work together,

it is possible to find some common ground.

So, as I say, Mr. Chairman, I am here mostly to listen and to learn—and I hope

that goes for everyone else as well, and that maybe this hearing will help identify

some ways for everyone involved to work together rather than to put our energies

into fighting. I am ready to help in any way that I can to assist that process.

Mr. MCINNIS. Thank you, Mr. Udall. I appreciate the statement.

We will now proceed with the second panel. The panel will note,

you have a timer sitting at the center of the table. Each member

of the panel will be allowed 5 minutes. I think at about the 4-

minute, where you have about 1 minute remaining, you will get a

little sum up.

As a courtesy to the remaining witnesses, I ask that you respect

the time when it expires and conclude your remarks so that we

may move on to the next witness.

With that in mind, Mr. Holsinger, you may proceed.

STATEMENT OF KENT HOLSINGER, ASSISTANT DIRECTOR,

COLORADO DEPARTMENT OF NATURAL RESOURCES

Mr. HOLSINGER. Thank you, Mr. Chairman. It is a great pleasure

and a great honor to be here on behalf of the State of the Colorado.

I would like to start by thanking you, Senator Allard, Congressman Schaffer, and the many others that are interested in this issue

and continue to work on it.

The State of Colorado envisions a new era of cooperation and

comity between the Federal Government and the state. But for that

to happen, the Federal Government must abandon their practice of

imposing what we believe are ill-founded and, indeed, illegal bypass flows on water providers.

For one, bypass flows don’t work. They don’t work within the priority system of many Western States, and they don’t respect private property rights.

This is an issue of tremendous scope and importance. It is not

just a Colorado issue. In fact, seven Western States have weighed

in on a pending lawsuit with Trout Unlimited, saying that bypass

flows are indeed illegal, and that the Forest Service has no authorVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 72514.TXT HRESOUR1 PsN: HRESOUR1
26

ity to impose them upon water providers as conditions to permit renewals.

True, there haven’t been many imposed yet. But we know from

the Forest Service and the instream flows strategies paper that

was referenced earlier today that they advocate the increased use

of bypass flows; they even go so far as to say condemnation of

water rights should be considered.

We don’t believe these are good policies, and we certainly hope

that policies such as these, as we have seen in the White River National Forest as well, will be abandoned in favor of a more collaborative effort that respects state water laws and even relies on state

instream flow programs.

I might add that this is a bipartisan issue in Colorado. Colorado’s

Democratic attorney general, Ken Salazar, has asked that we introduce for the record a paper that he recently did for the Colorado

Water Congress. His paper talks about the unfair use of bypass

flows and recommends other means by which we might achieve

these purposes.

I would like to submit that for the record, if I may, Mr. Chairman.

Mr. MCINNIS. Without objection, so ordered.

[The paper referred to follows:]

Buying Water Rights For Instream Flows -- An Opportunity to Resolve

Environmental Conflicts

BY ATTORNEY GENERAL KEN SALAZAR, TO APPEAR IN THE SPRING 2001 ISSUE OF

COLORADO WATER RIGHTS, PUBLISHED BY THE COLORADO WATER CONGRESS

The current budget surplus gives the Bush administration a unique opportunity

to achieve the instream flow protection sought for our federal public lands without

using the confrontational tactics that have led to many of our Western water wars.

Federal agencies in the past have used reserved rights claims or land use permitting authority to attempt to preserve instream flows on federal lands. Too often

these tools have threatened to upset decades of pre-existing water uses and the local

economies that those uses support. The end result of these approaches has enriched

water lawyers and engineers, but little protection of the resource has been achieved.

Indeed, the United States has unsuccessfully spent over $70,000,000 in the last

three decades in an effort to protect instream flows with little success. All of that

could change if the Bush administration would aggressively use the Land and Water

Conservation Fund to help states purchase or lease senior water rights from private

sellers and dedicate those rights to instream flows.

The members of the Colorado Water Congress are only too familiar with the attempts by various federal agencies to impose by-pass flows during the re-permitting

or re-licensing of structures impounding on, diverting from, or passing through federal lands. This approach has endangered the yield of many municipal and irrigation water suppliers, years and even decades after those water users first began

their diversions. Though the State understands and supports the water needs of our

public lands, the federal government’s by-pass flow approach is unfair and must

change if meaningful protection for our public lands is to be achieved.

Even when the federal government has been willing to work with water suppliers

to balance protection of instream flows with the needs of water right owners, lawsuits have threatened the implementation of agreements between water users and

the Forest Service. In Trout Unlimited v. U.S. Dept. of Agriculture, currently pending in federal court in Colorado, Trout Unlimited has challenged the Forest Service’s

failure to require bypass flows as a condition of renewing a Special Use Permit for

a reservoir within the Arapaho National Forest. The Forest Service had concluded

that bypass flows were unnecessary after modeling showed that a Joint Operations

Plan among the owners of several reservoirs and the Forest Service would preserve

the rights of the water owners as well as improve the overall fish habitat.

The good news is that there is a better tool available that would allow federal

land managers to assure the preservation of instream flows. This tool is the Land

and Water Conservation Fund. The Land and Water Conservation Fund (LWCF) is

27

a special account created in 1964. While this fund has primarily been used in the

past to acquire new recreation lands, the law creating the fund specifically authorizes use of the fund to acquire water.

In the Forest Service’s November 30, 2000, white paper concerning ‘‘Instream

Flow Protection Strategies for the 21 ‘‘ Century,’’ one of the ten tools mentioned for

protecting instream flows through public lands was the purchase or lease of water

rights from willing private sellers. This approach has been very successful in acquiring over 7 million acres of important recreational lands over the last 35 years. As

public land managers now turn more of their efforts in the western United States

from acquisition to stewardship of existing public lands, water takes on an increased

importance.

The Land and Water Conservation Fund accumulates revenues from federal outdoor recreation user fees, the federal motorboat fuel tax, surplus property sales, and

revenues from oil and gas leases on the Outer Continental Shelf. While the LWCF

is authorized to spend up to $900 million a year, Congress must authorize appropriations and if not authorized, the revenues remain in the U.S. Treasury. Large

budget deficits in many of the last 35 years have caused great fluctuation in funding.,. So while $24.5 billion could have been appropriated from the fund since 1965,

only. $11.4 billion has been authorized.

The Bush Administration has announced that it will seek full funding for the entire $900 million LWCF authorization for this year. In addition, the proposed Conservation and Reinvestment Act (CARA - currently H.R. 701), if passed, would authorize an additional $900 million annual expenditure from the LWCF, with half of

these funds (also derived from off shore oil and gas leases) set aside for state administered grants. I will request that the Bush administration sustain and build upon

these efforts in the years ahead.

Though the LWCF funds exist, federal land managers have voiced some skepticism about Colorado’s eligibility to participate in these programs for water acquisition. The expressed concerns involve a requirement that the federal government retain title to any acquired water rights used for instream flow purposes. The land

managers seem confused by the prohibition in state law that restricts ownership of

an instream flow to the Colorado Water Conservation Board (CWCB). While it is

true that only CWCB can own instream flow water rights, the same statute allows

parties to donate acquired water rights to the CWCB and maintain considerable

operational control over the donated rights pursuant to the terms of the donation

agreement.

Imposition of by-pass flows has caused unnecessary and wasteful controversy that

has distracted all of us from the goal of protecting Colorado’s precious public lands.

Just as the land acquisition program of the LWCF has been successful in preserving

a public land legacy, the purchase of water rights through the LWCF can also be

successful in providing the water for these public lands.

As Colorado Attorney General, I would be pleased to structure donation agreements between CWCB and the federal government so water rights acquired can provide the long-term protection of instream flows we all desire. I urge Congress to

fund LWCF to its full $900 million limit and to adopt the CARA legislation in order

to augment the funds available for these important resource protection activities.

Mr. HOLSINGER. I might talk a minute about the congressional

task force. All members of the congressional task force agreed that

the Forest Service should forego bypass flows and instead look at

cooperative efforts, at incentive programs for water providers, and

at using state instream flow programs—and for good reason.

Over the last three decades, the Forest Service has spent some

$70 million, according to our attorney general, on fighting to obtain

instream flows with very limited success.

By contrast, the State of Colorado, through our water conservation board, has appropriated instream flows on over 8,000 miles of

streams within the state.

I brought a map with me today to show the scope of the instream

flows that the State of Colorado has appropriated, particularly on

national forests lands. And I think the members of the Subcommittees can see that we have extensive appropriations that literally

cover the state.

28

There are several success stories I might touch on that really

demonstrate that there is a precedent for working together to get

over these issues.

One is the Joint Operating Plan on the Poudre River. This is a

plan that, through a voluntary agreement worked out with the Forest Service, more flows are guaranteed for aquatic habitat than bypass flows or even historic conditions.

Nevertheless, Trout Unlimited has sued, saying the Forest Service must impose bypass flows. That is the lawsuit that is pending

today.

On Boulder Creek that Congressman Udall mentioned, there was

a tremendous example of the state, local, and Federal Government

working together. The city of Boulder donated instream flows to

the water conservation board, except in emergencies when they can

take back those flows. It has worked out very well for all parties

involved.

Hanging Lake is another example. I brought a picture; this is in

Glenwood Canyon. The state and the Federal Government have

worked cooperatively to protect this incredible natural environment

and, indeed, all of the unappropriated flows.

There is ample precedent for the states and the Federal Government to work together. This is a huge issue, again, across the

Western States. Several states are concerned about where the Forest Service is going.

More than 8,000 permits out there; true. That is more than 8,000

opportunities for conflict.

We would rather see this issue addressed up front, honestly,

forthrightly, with the participation of all parties.

And with that, Mr. Chairman, I will conclude my remarks.

[The prepared statement of Mr. Holsinger follows:]

Statement of Kent Holsinger, Assistant Director,

Colorado Department of Natural Resources

Introduction

We greatly appreciate Chairman McInnis’ interest and work on this issue. We

thank Chairmen McInnis and Calvert for holding this hearing on such an important

matter. We also thank Congressman Schaffer and Senator Allard for circulating and

sending letters to Secretary Veneman and Attorney General Ashcroft respectively.

Everyone’s heard the old adage, ‘‘Whiskey’s for drinkin’ and water’s for fightin’.’’

With all due respect to Mark Twain, at least in this case, we beg to differ. The State

of Colorado envisions a new era of cooperation: one of comity with the federal government that results in real environmental benefits.

For this to happen, the U.S. Forest Service must abandon the ill-founded, and we

believe, illegal, practice of imposing bypass flows on water providers. Instead, it

must work collectively with the states and water providers to protect resource values. Specifically, the Forest Service must work within the bounds of state water

laws and pursue any federal claims to water in state adjudications.

Federal claims for water have always been contentious and have rarely been successful. With Congress’ enactment of the McCarran Amendment in 1952, the United

States waived its sovereign immunity and consented to the jurisdiction of state

water adjudications. In 1993, the U.S. Supreme Court, in U.S. v. Idaho, affirmed

that the McCarran Amendment subjected federal claims to water rights to state adjudications and clarified that federal claims were subject to state laws.

The Forest Service must attain the secondary purposes of the National Forests

by obtaining and exercising water rights in accordance with state and federal laws.

Bypass flow claims contravene one of the primary purposes for which the forest

lands were reserved--to secure favorable water flows for water providers. Moreover,

bypass flows simply don’t work. They fail to provide environmental protection and

instead create an atmosphere of hostility, litigation and distrust. Opposition to byVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
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1The Ditch Bill, a 1986 amendment to of the Federal Land Policy Management Act (FLPMA)

(43 U.S.C. Section 1761(c)), provided agricultural water users with the option of accepting a permanent easement from the Forest Service for certain ditches, reservoirs or other facilities constructed on Forest Lands. It applied to all structures in existence prior to the October 21, 1976

effective date of the Federal Land Policy Management Act, (FLPMA) and was enacted to give

agricultural water users the opportunity to avoid a Forest Service process that was increasingly

seeking to attach on them burdensome terms, conditions and fees. Unfortunately, this and other

controversies related to Ditch Bill easements continue to this day. 2While the State of Colorado strongly believes there is no legal authority for bypass flows,

we recognize the Forest Service may require non-flow related permit conditions such as: dam

safety requirements; best management practices; conditions for recreational purposes; or conditions for stocking or management of fish and wildlife.

pass flows is a bipartisan issue in Colorado. Attorney General Ken Salazar also believes the policy of imposing bypass flows is illegal and ill founded. He asks that

you include the following article about alternative strategies to protect instream

flows in the record for this hearing.

History

Many of Colorado’s water supply facilities are located on, or transport water

across, federal lands. So our relationship with the Forest Service is vitally important. While we understand, and concur with, the Forest Service’s desire to protect

resource goals, the Supreme Court and the Congress have clearly established that

federal claims on water are subject to state laws through a long series of carefully

considered decisions and thoughtfully executed laws. The system thereby established protects well-established principles of federalism and property rights. We remain prepared to vigorously defend Colorado law against any Forest Service attempt to make an end-run around Congress and the rights of Coloradans.

The Forest Service started imposing bypass flows in Colorado in the early 1990s

as a condition of permit renewals. As Chairman McInnis is well aware, bypass flows

are among several contested issues in the controversial White River National Forest

Plan in Colorado. Several other Western States face these issues as well. In fact,

seven Western states recently filed briefs in a pending lawsuit against the position

that the Forest Service has the authority to impose bypass flows.

In 1992, then Secretary of Agriculture Madigan stated the Forest Service would

not wrest water from permit holders through bypass flows. The Clinton Administration revoked this policy in 1994. Since then, the Forest Service has publicly stated

its intent to use bypass flows more frequently. For example, in the November, 2000

‘‘Water for the National Forests and Grasslands: Instream Flow Strategies for the

21st Century’’ by the USDA Forest Service, the agency advocates imposing bypass

flows as conditions to Ditch Bill easements 1 (an issue of immense scope and consequence for thousands of farmers and ranchers) and even condemnation of water

rights.

That document goes on to lament that federal claims on water, ‘‘are always heard

in often hostile state courts before judges without juries that never understand

them’’ and that flexing their perceived regulatory power is, ‘‘a key component of the

policy shift the FS needs to undertake if we are really going to protect and restore

instream flow values.’’ (pp.5 and 11 respectively). We strongly disagree. And so did

a congressional task force convened in 1997.

Congress convened a Water Rights Task Force in response to the bypass flow controversy. The Task Force concluded there was no legal authority for the Forest Service to impose bypass flows.

The Forest Service Has No Legal Authority to Impose Bypass Flows

‘‘Absent an explicit grant of authority by Congress,’’ said the Task Force, there

is no such regulatory power to impose bypass flows on water providers. 2 The Forest

Service lacks statutory authority to impose bypass flows through forest plans. Under

NFMA, land use authorizations are subject to ‘‘valid existing rights.’’ 16 U.S.C. Section 1604(I) (1988). Moreover, Congress explicitly protected the existing use, ‘‘allocation and state jurisdiction over water’’ as well as all valid existing rights when it

enacted FLPMA. See generally 43 U.S.C. Sections 1701–1784 (1988). Specifically,

subsections 701(g) and (h) of Title VII of FLPMA are clear on this proposition.

According to the Task Force, Congress did not intend FLPMA to operate in contradiction to existing water rights, water development, water laws or compacts. In

fact Congress preserved water rights language in the 1866 Mining Act while repealing right-of-way provisions under that same Act. Neither FLPMA nor NFMA justify

anything but deference to state water laws.

Not all members of the Task Force agreed with these conclusions. However, they

all agreed upon the following recommendations:

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3The CWCB has acquired over 390 cubic feet per second (cfs) and 3,652 acre feet (af) of senior

rights on streams and lakes across the State. Donors have given the CWCB 378 cfs and 200

af. In addition, the CWCB has entered into leases and contracts for 3,451.7 af and 13.5 cfs.

• Achieving national forest purposes, whenever possible, through the use of alternative water management strategies, rather than through bypass flow requirements;

• Using state instream flow programs, where available, to acquire rights and provide water for national forest purposes; and

• Seeking voluntary agreements with non-federal water rights holders.

Alternatives to Bypass Flows

Alternative management strategies such as: federally funded mitigation; collaborative measures; land exchanges; and non-flow alternatives, including structural

measures should be pursued. These could more effectively protect resources than

litigation or hotly contested bypass flows. Also, operational changes to water supply

facilities can sometimes provide environmental benefits without interfering with

water rights.

Incentives to water providers could help propel the federal government into a new

era of successful environmental protection. For example, the Task Force recognized

Congress could amend 16 U.S.C. Section 499 and other applicable laws to ensure

permit revenues are deposited into accounts, without additional authorization or appropriation, to create incentives in the national forests from which revenues are derived. Another opportunity for funding incentives for better environmental protection may stem from the Land and Water Conservation Fund (LWCF). The State of

Colorado supports the Bush budget proposal to fully fund this important program.

The State hopes Congress will consider how best to create incentive programs from

the LWCF. However, utilization of state instream flow programs may hold the most

promise for protecting resource values.

Working with State Instream Flow Programs

State instream flow programs may provide the best avenue towards real environmental protection on forest lands. The Colorado Water Conservation Board (CWCB,

or the ‘‘Board’’), created in 1937, is responsible for the appropriation, acquisition and

protection of instream flow and natural lake level water rights to preserve the natural environment. Today, we have a program that effectively balances the needs of

people and the environment. This program is particularly well suited to protecting

instream values on national forest lands.

Since the creation of the State’s Instream Flow Program in 1973, the CWCB has

appropriated instream flow water rights on more than 8,000 miles of streams (8,433

in 1,421 reaches) and 486 natural lakes in the state. In 1986, the Colorado General

Assembly authorized the CWCB to acquire even senior water rights to preserve the

environment. 3 By working with water right owners, Colorado can protect more

streams or improve the priority of existing instream flow rights.

CWCB’s Water Acquisition Program

In 1986, the Colorado legislature amended the instream flow statute with Senate

Bill 91 (SB–91) to accommodate federal instream flow needs. The new statute required the CWCB, in addition to requesting instream flow recommendations from

state agencies, to request recommendations from the United States Department of

Agriculture and the United States Department of the Interior.

The SB–91 was intended to eliminate the need for federal agencies to independently pursue instream flows through bypass flows and environmental statutes on

federal lands. Under this law, federal agencies have the opportunity to provide

instream flow recommendations to the Board for protecting the natural environment

on the public lands. The Water Acquisition Program (WAP) was then created to acquire water for instream flow uses. This innovative program provides the means for

the CWCB to acquire more water than ever before through various contractual

agreements, ranging from donations to leases and purchases. While original appropriations may only be acquired by the CWCB, the Board may contract with federal

agencies to obtain interests in water that have already been appropriated. In such

a case, the Forest Service could retain title to water rights, but work out an arrangement with the CWCB to ensure they protect both instream flows and property

rights.

Enforcement of State Instream Flows

While some may argue the CWCB does not adequately protect its interests, the

Board aggressively enforces instream flow water rights. The CWCB monitors all of

its Instream flow water rights throughout the state. They rely on existing USGS

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4 Unfortunately, the Forest Service often takes the position that such agreements illegally forfeit a federal property interest in water without prior Congressional approval. See ‘‘Water for

the National Forests and Grasslands: Instream Flow Strategies for the 21st Century’’ by the

USDA Forest Service, November 30, 2000 at 8. This concern is without merit.

gages, a network of satellite gages, and numerous staff gages. In addition, the

CWCB coordinates closely with the Division Engineers’ offices to make sure that the

Board’s water rights are being administered in priority. If a water right application

is determined to injure the Board’s Instream flow water rights, then the staff files

a Statement of Opposition.

Once a Statement of Opposition is filed, the Board works with the water right applicant to resolve potential concerns. Then, if terms and conditions can be worked

out to protect the instream flows, they are entered into the Applicant’s water right

decree without the need for litigation. Not only does this ensure full protection of

the Board’s ISF water rights, but it also streamlines the process, saving the applicant and the state valuable time and resources. However, if sufficient terms are not

worked out, the Board proceeds to trial.

The State of Colorado recognizes there is room to improve upon these areas. For

this reason, we have urged our congressional delegation to support increased funding the USGS stream gages and we have entered into agreements with other entities, including the Colorado chapter of Trout Unlimited, to monitor stream levels.

Nevertheless, from 1977 to the present, the CWCB has filed a total of 694 Statements of Opposition to protect its instream flow water right appropriations. With

regard to the White River National Forest, the Department of Natural Resources

and CWCB have numerous agreements in Summit County that provide protection

for ISF water rights.

Cooperation Between the CWCB and the Federal Government

The CWCB has a very productive relationship with the Bureau of Land Management (BLM). To date, some 33 stream segments have been protected in collaboration

with the BLM. There, we have entered into contractual arrangements and long-term

leases that meet the needs of both the federal government and the State. The BLM

also supplied a series of instream flow priorities, which CWCB plans to pursue

across the State of Colorado.

Unfortunately, at this time, only one agreement between the CWCB and the Forest Service has been signed utilizing the tools provided by SB–91. 4 This agreement

provided the transfer of some of the Forest Service’s water rights associated on

Hunter Creek to the CWCB for instream flow purposes. Through these types of

agreements, the CWCB, can address some, if not all, of the instream flow needs of

the Forest Service in the White River National Forest and other national forests in

the state.

The CWCB has initiated several conversations with the Forest Service in an attempt to develop cooperative efforts for the protection of the environment on forest

lands. These include discussions on potentially transferring interests in water rights

with lands the Forest Service has acquired (via purchase or land exchange) to the

CWCB for instream flow purposes. Discussions in Region Two continue in the ‘‘Pathfinder Project’’ which hopes to resolve controversies related to flows, travel management, etc. on the Gunnison and Uncompaghre National Forests (GMUG). The State

of Colorado appreciates the effort and is an active participant, but new the forest

planning regulations would hinder an already onerous federal process to the point

discussions may be fruitless.

Success Stories

Several examples bolster the State’s contention that environmental purposes are

best fulfilled by cooperation with the states and water providers.

Operational Changes in the Cache la Poudre River

Water storage can serve two purposes -- providing water for municipal and agricultural purposes and augmenting streamflows to enhance aquatic habitat. In fact,

the Division of Wildlife cited naturally occurring low winter flows as the limiting

factor in the Poudre River fishery. Thanks to a cooperative agreement between

water providers and the Forest Service, aquatic habitat is protected above and beyond historic conditions.

While water providers disagreed that the Forest Service had the legal authority

to impose bypass flows, they worked with the Forest Service to develop a plan for

the coordinated operation of a number of reservoirs located in the Poudre River

headwaters. This ‘‘Joint Operation Plan’’ (JOP) was designed to optimize aquatic

habitat on National Forest lands without causing a loss of the water supply. Under

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the JOP, 3,000 acre-feet of storage water is released for beneficial uses when it will

also augment low wintertime flows.

The Poudre River JOP provides a case study of the potential for optimization of

the operation of water supply facilities to attain National Forest purposes without

causing a loss of water supply from these facilities. When comparing the JOP with

bypass flows during a series of years, more environmental benefits, and more water,

derive from the cooperative agreement.

Ironically, Trout Unlimited rejected the JOP and sued the USDA alleging the Forest Service not only has authority, but an obligation to impose bypass flows. The

parties to the Trout Unlimited v. USDA case are now entering briefs with the federal district court in Colorado. The State of Colorado joined as a defendant intervenor in the case. The States of Alaska, Wyoming, Idaho, New Mexico, Nevada and

Arizona have all filed amicus briefs to the effect that the U.S. Forest Service has

no legal authority to impose bypass flows. That seven Western states have weighed

in on this issue speaks volumes.

Boulder Creek -- Protection of Instream Flows under Colorado Law

Boulder Creek arises near the Continental Divide in the mountains west of Boulder, Colorado. Historically, diversions on all three branches have dried up the creeks

at various locations during periods of low flow—mostly in late summer and winter.

The Forest Service threatened bypass flows on a special use permit required for

a rebuilt pipeline needed by the city. Boulder pointed to its agreement with the Colorado Water Conservation Board (CWCB), the only entity that can hold instream

flows under Colorado law, for instream flow protection consistent with the Forest

Service standard.

This innovative agreement combines new instream flow filings by the CWCB with

some of Boulder’s historic water rights to ensure adequate resources for aquatic

habitat. The result is a respectable trout fishery and riparian habitat in the midst

of an urban environment.

While the Forest Service was at first unwilling to accept this arrangement, after

extensive negotiations, they agreed the City’s contract with the CWCB suffices for

national forest purposes so long as it remains in effect and so long as the CWCB

upholds and protects those instream flows.

Hanging Lake

In 1996, instream flow and natural lake protections for Hanging Lake and East,

West and Main Dead Horse Creek resulted from cooperative efforts between the regional forester and the CWCB. While the CWCB’s statute requires them to appropriate the ‘‘minimum amount necessary to preserve the environment to a reasonable

degree,’’ the Board demonstrated great flexibility and obtained rights to all unappropriated flows in the basin to preserve the unique hydrologic and geologic environment including Bridal Veil Falls and Hanging Lake. Working together, the State of

Colorado and the Forest Service protected a unique natural environment that provides outstanding recreation and aesthetic qualities that attract thousands of travelers from around the world.

Examples in Other States

There are success stories in other states as well. Arizona, Idaho and Montana

have taken strides to work with the federal government rather than against it. But

they are plagued by many of the same challenges we face in Colorado. In Arizona,

a state process would guarantee consultation with the Forest Service. But the agency created a controversy where none needed exist by insisting it needed to ‘‘retain

control.’’ The USFS also sued in Idaho, claiming Idaho law is inadequate to protect

federal interests in water uses on forest lands.

By contrast, the Bureau of Land Management requested the Idaho Water Resources Board hold instream flow and storage rights on federal lands. No federalstate tension exists on those successful efforts. In 1993, the Montana Compact Commission and the Forest Service entered into a Memorandum of Understanding

(MOU) on federal claims to water. The State and the Forest Service have been

working out these issues, but any threat of bypass flows could potentially hinder

their good work.

Misplaced Criticism of State and Voluntary Efforts

The minority of the Task Force mentioned the agency has ‘‘usually attempted’’ to

respect the equities and that they have ‘‘tried’’ to accommodate facilities. But is it

good enough to ‘‘attempt’’ or ‘‘try’’ to respect the will of Congress and the laws of

the land? Even detractors agree state and collaborative measures to protect the environment should be ‘‘vigorously pursued’’ by the Forest Service. The minority contention that the agency needs bypass flows to secure, ‘‘voluntary protective measVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
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5 Ironically, the ESA may have actually inhibited recovery efforts for the Greenback Cutthroat.

Private waters often provide the most productive habitat for these fish, but landowners have

been unwilling to let the State stock greenbacks on their land because of the looming shadow

of the ESA.

ures’’ on forest lands is nothing less than extortion. That word is defined as ‘‘the

act or practice of wresting anything from a person by force, by threats, or by any

undue exercise of power; undue exaction; overcharge.

Sound Science

Some detractors argue state instream flow programs often do not provide sufficient flows. However, the State of Colorado’s instream flow methodology, R2 Cross,

is more than adequate to address instream flow needs. In fact, that methodology

was developed by Region Two of the Forest Service and improved upon by the State

of Colorado. We simply insist that recommendations are based upon sound science

and recognize existing water rights and interstate compacts. It is critical that the

Forest Service base their recommendations on sound science and a specific assessment of species or habitat needs. Even then, we should work with the Forest Service

to monitor and accurately evaluate the actual impacts of such acquisitions.

Prior Appropriations and Interstate Compacts Help Protect Flows

While some argue states must make substantial changes in their programs and

laws before the Forest Service quits imposing bypass flows, the priority system often

protects instream resources. As to the assertion that state law might allow the dam

owner to dry up the stream, that is simply not the case in Colorado. Senior demands

pull water past upstream junior diversions and assure healthy streams in the process. Interstate compacts do the same on a much larger scale. A full 75% of the Colorado River must pass through Colorado to fulfill compact requirements to other Colorado River Basin States. Forty percent of the Arkansas River must do the same.

In fact, of all rivers in this headwaters state, only portions of warm water habitat

on the South Platte are occasionally dewatered in dry years.

Some rivers and several tributaries historically dried up, including the South

Platte. Since 1900, South Platte River flows, as many in the state, have increased

steadily due to irrigation and more efficient water use through storage. According

to the Colorado Division of Wildlife, water storage has greatly increased the sustainable trout fisheries in Colorado. For example, Gold Medal trout water exists below

several major reservoirs and provides better trout habitat, particularly in dry years,

than existed prior to development.

Endangered Species

Instream flows for cutthroat trout streams (the greenback cutthroat trout is listed

as a threatened species and the Colorado River cutthroat trout has been petitioned

for listing) are among the highest priorities in the 2002 Work Plan for the CWCB.

The greenback cutthroat trout has done exceptionally well in recent years in

streams administered by the prior appropriations doctrine in Colorado. In this case,

the U.S. Fish and Wildlife Service delegated incidental take authority under

Section 9 of the Endangered Species Act (ESA) to the Colorado Division of Wildlife

for the greenback cutthroat trout, a threatened species. Thanks to state-led efforts,

it has nearly recovered to the point of delisting. 5

Conclusion

The State of Colorado recognizes that laws governing management of National

Forests direct the Forest Service to prevent damage to the resource. Our interest

lies in working with the Forest Service to do just that. The State of Colorado insists,

however, that resource protection be done consistent with the prior appropriations

system and the property rights of Coloradans. Some assert bypass flows are not a

serious issue. Seven Western states, including Colorado, disagree. Prevention is

nine-tenths of the cure for the 8,370 permits for which bypass flow controversies

could arise.

Where the Forest Service does obtain water, it must do so in priority and respect

that water rights are vested property rights. The Forest Manual will not solve the

problems discussed at this hearing. Even with direction from the agency, many employees at the regional and local levels simple ignore such prescriptions even if they

come from the Secretary. Accordingly, forest plans should reflect a strong preference

for working with state instream flow laws and collaborative agreements with water

users.

Using strategies that comply with the McCarran Amendment and state water

laws, the Forest Service can both accomplish the purposes of the national forests

and enjoy a cooperative relationship with the states and their water providers. The

34

State of Colorado has extended an open invitation to work with the Forest Service

to protect our unique and important environment and we look forward to doing that.

Thank you.

[The following article was submitted for the record by Mr. Holsinger:]

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36

37

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Mr. MCINNIS. Thank you, Mr. Holsinger.

Mr. Getches, you may proceed.

STATEMENT OF DAVID GETCHES, BYPASS FLOWS

CONGRESSIONAL TASK FORCE MEMBER

Mr. GETCHES. Thank you, Mr. Chairman, for the opportunity to

be here. I have submitted written testimony, and I will just highlight a few of the things that were in there and add to those remarks briefly.

Let me step back for a minute and put this in historical perspective. It is legitimate to ask, how did this issue become as visible

as it is and get as much attention as it has gotten? And the history

there goes back to the mid-1980’s when permits for maintenance of

water facilities on the national forests were coming up for renewal,

as they must under the Federal Land Policy and Management Act.

The Forest Service at that point was just beginning to implement

the then about 10-year-old mandate of FLPMA, and they didn’t

have well-established procedures on how to do this.

To match their lack of experience in dealing permit renewals and

permit issuance is their, if I may be a bit pejorative and speculative here, their lack of appreciation for how we in Colorado think

about water rights. They had no idea what it was like for a Federal

agency to mess around with water rights in Colorado. They found

out.

They found out because we have congressional delegation that is

always vigilant about how those water rights are asserted and protected and that respects the state’s system for administration of

water rights. And that delegation moved into action.

They perceived what was going on at that time, which was a few

instances where the Forest Service had asked for bypass flows as

a condition of renewing permits for existing water facilities on the

national forest to be a ‘‘policy’’ or a ‘‘practice’’ or a ‘‘program.’’

And Senator Brown, as he indicated, and Mr. Allard, now Senator Allard, set in motion inquiries to the Department of Agriculture about this practice.

Now, at the same time as they were involved in correspondence

with Forest Service, work began on solutions to the very problems

that we are talking about.

Mr. Udall addressed the Lakewood problem. The issue involving

the Poudre River, where bypass flows were requested by the Forest

Service, is summarized also in the task force report.

I assume that the report of the Federal Water Rights Task Force

has been made part of the record here in this Committee. If not,

I would request that it be made part of the record.

The task force was established by Senator Brown’s amendment

to the farm bill. And I was a member of that task force with my

friend Bob Lynch here, who will address you in a moment.

That task force looked into this problem comprehensively. And to

the surprise of myself, and I think of the whole Committee, we

found virtually no instances of the use of the bypass flow authority

outside Colorado. We found a handful of what could arguably be

call bypass flow conditions nationwide.

39

We held hearings in 10 different places, and we had meetings

stretching over a year and received written testimony. The record

is just about void of any use of this authority.

And I understand that since the task force completed its work in

1997, there have been none. So it appears that the problem is a

very small one, if it is a problem at all.

Now, it is not a great problem because the Forest Service has a

large and varied tool box: reserved rights; appropriation of water

under state systems; management programs; use of state instream

flow programs, like the one that Mr. Holsinger described.

The three of us who signed on to the separate views of the Committee agreed with most of the task force recommendations. Our

points of agreement and disagreement are outlined in my testimony as well as in the report itself.

But we could not agree that there was a lack of Forest Service

authority. Three of us were lawyers, and our considered legal opinion was that it is clearly lawful for the Forest Service, as a proprietor of public land, to require as a condition of maintaining a dam

or other water facility on public lands, that instream flows be

maintained for fisheries. This they must do under Section 505 of

FLPMA. Secondly, any proprietor of land is privileged to do this.

In conclusion, I would like to say that the bypass flow issue has

always been a Colorado-specific issue. The issue arose only when

local Forest Service officials, arguably precipitously, asserted their

authority to impose conditions on permit renewals.

But in all of those cases, the parties found collaborative solutions

to the problems. Water users may be contentious, but they are also

creative and intelligent, and they found ways to solve these problems.

Why keep the bypass flows as a tool in the toolbox? If you take

it away—if you take that authority away or you force a policy decision not to use bypass flows authority—you undermine collaborative efforts to find reasonable solutions.

Without the motivation to reach a negotiated solution, and absent the ability as a last resort to use this bypass flow authority,

collaborative efforts will collapse. And FLPMA’s mandate won’t be

carried out.

The only tool the Forest Service will have left then is a complete

denial of the permit.

[The prepared statement of Mr. Getches follows:]

Statement of David Getches, Professor, University of Colorado

Good afternoon, Mr. Chairman and subcommittee members. Thank you for the opportunity to testify today. We are here to discuss an important tool for the preservation of the nation’s water resources. My perspective on bypass flows is informed by

my occupation, professor of water and natural resource law for the University of

Colorado, my service as Director of Colorado’s Department of Natural Resources

from 1983–87, and my service as a member of Congress’ Federal Water Rights Task

Force. Through these activities, I have had a long history of involvement in both

the legal and policy aspects of water resource conservation, including questions surrounding federal authority to protect water resources on federal lands.

It is my opinion that the Forest Service’s authority to impose bypass flows is:

• Legally sound,

• Not the cause of any demonstrable hardship on the part of historic water users,

and

• A regulatory strategy that the agency has used sparingly in the past and must

be allowed to continue to use in the future.

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6The Task Force identified 8,370 permits issued for water facilities on the National Forests.

Report of the Federal Water Rights Task Force Created Pursuant to Section 389(d)(3) of P.L.

104–127, August 25, 1997 (Task Force Report) at IX–3. 7The Task Force was able to identify only fifteen instances in which a bypass flow condition

may have been required. Task Force Report at IX–3. Even this figure included some water-related conditions that do not technically require ‘‘bypass flows.

In the balance of my testimony, I will explain how I arrived at these conclusions,

describing first my experience on the Federal Water Rights Task Force (Task Force)

and then reviewing some more recent events.

Many private water rights holders obtain their water directly from the National

Forests. The dams, reservoirs, canals, and pipelines they use frequently occupy National Forest land, operating under permits and rights-of-way granted by the Forest

Service. 6

The issue before you today is what conditions the Forest Service may require in

granting permission to use Forest Service land for water infrastructure. Under the

Property Clause of the Constitution, the authority of the United States to control

use of land belonging to the United States is quite broad, essentially without limits.

In the case of National Forests, the Forest Service has, since its inception, and

through the Organic Act of 1897, had the delegated authority to limit access to the

Forests, and to require terms and conditions in doing so. Subsequent law has

shaped the exercise of that authority, but has not diminished it.

With the United States’ proprietary authority over the National Forests as the

backdrop, this hearing addresses whether the Forest Service may require those

holding federal permits or rights-of-way to use National Forest land for water infrastructure to release water in order to protect fish and wildlife habitat and other environmental resources on National Forest land.

Federal Water Rights Task Force

This unremarkable effort on the part of the Forest Service to exercise authority

over use of National Forests last received congressional attention in 1995. The 1996

Farm Bill contained a provision creating the Federal Water Rights Task Force to

investigate the need for a legislative solution to the bypass flows ‘‘controversy.’’ By

statute, the seven members of the Task Force were to be appointed by the Majority

Leader in the Senate (2), the Speaker of the House of Representatives (2), the Minority Leader in the Senate (1), the Minority Leader in the House of Representatives (1), and the Secretary of Agriculture (1). I was asked to sit on the Task Force

by the Secretary of Agriculture.

The Task Force held a series of twelve meetings between September 24, 1996, and

August 25, 1997. In order to ensure that all interested parties were better able to

attend, meetings were held throughout the West, in Reno, Nevada; San Francisco,

California; Boise, Idaho; Portland, Oregon; and Denver, Colorado as well as

Washington, D.C. All meetings were open to the public. Oral and written testimony

was solicited. The Task Force received for the record and reviewed thousands of

pages of comments and documents.

More than three years ago, the Task Force delivered its final report to Congress,

Report of the Federal Water Rights Task Force Created Pursuant to Section

389(d)(3) of P.L. 104–127 [Task Force Report] (August 25, 1997). The fact that I am

here today suggests that the report failed to lay to rest some congressional concerns

over the Forest Service’s use of bypass flow conditions.

Although the Task Force was divided on some of its fundamental conclusions, an

important factual point can be made without dispute. This ‘‘controversy’’ is of extremely limited scope. Bypass flow conditions have rarely been imposed. 7 Despite

the Task Force’s repeated inquiries, we received virtually no complaints about the

Forest Service’s use of bypass flow conditions outside the State of Colorado. Moreover, the Colorado cases where water users objected were all resolved through negotiation. Settlements reached by the Forest Service and water users took the place

of mandatory bypass flow requirements in nearly all instances. Only a few conflicts

have reached the courts. Of these, most have involved situations where members

of the public and environmental organizations challenged the Forest Service for not

being sufficiently protective of public lands by failing to exercise fully its authority

to impose such bypass flows. In addition, one water user demonstrated that its facility pre-dated the requirement to obtain a Forest Service right-of-way.

Accordingly, the initial approach of the Task Force members was to seek common

ground. The members all recognized the need to divert water from sources on the

National Forests in order to secure water for off-stream uses, such as irrigation and

municipal supply. They also agreed that certain fish and wildlife habitat on National Forest lands should be protected and that minimum instream flows might be

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8 In addition, the minority recommended that the Forest Service Manual be amended to provide for alternative forms of dispute resolution for FLPMA authorizations involving non-federal

water rights and facilities and to allow other interested parties to participate equally in those

procedures. Task Force Report at IX–10. 9See United States v. Midwest Oil Co., 236 U.S. 459 (1915) (upholding a 1909 executive withdrawal of land that had been opened to entry under the 1872 General Mining Act.) 10These statutes are the Organic Act of 1897 (Organic Act), 16 U.S.C. § 551 (1994); the Multiple–Use and Sustained–Yield Act of 1960 (MUSY), 16 U.S.C. §§ 528–31 (1994); the National

Forest Management Act (NFMA), 16 U.S.C. §§ 1600–14 (1994); and the Federal Land Policy and

Management Act (FLPMA) 43 U.S.C. §§ 1701–84 (1994).

necessary in some cases to do so. The Task Force sought out practical solutions that

would both protect off-stream water users and meet the mandate of the US Constitution and the Forest Service’s statutory missions to secure favorable water flows

on National Forests with non-federal diversions.

At the last minute, however, these efforts were abandoned. Rather than seeking

an accommodation between competing uses, a one-vote majority on the Task Force

chose to opine that the Forest Service’s use of bypass flow conditions was improper

under any circumstances. Because of the majority members’ sudden insistence on

reducing the Task Force Report to a legal brief, broad areas of agreement, achieved

after months of work by all the Task Force members, received little recognition.

Still, a careful reading of the majority report and the separate views of the minority reveals that there was much consensus among the Task Force members. For example, all members of the Task Force agreed upon several actions the Forest Service and this body could undertake that would help secure adequate flows of water

to preserve National Forest resources and, therefore, reduce even further those circumstances in which bypass flow conditions might be required. The Task Force

members joined in the following recommendations:

• The Forest Service should use reserved water rights awarded the United States

in McCarran Amendment proceedings to meet National Forest purposes.

• National Forest purposes should be achieved, where possible, through the use

of alternative water management strategies.

• The Forest Service should use state programs that protect instream flows to acquire rights and provide water for forest purposes where adequate state programs are available.

• The Forest Service should seek voluntary arrangements with non-federal water

rights holders where possible.

• Congress should amend 16 U.S.C. § 499 and other applicable laws to allow the

Forest Service to expend revenues from the grant or renewal of FLPMA authorizations for water supply facilities and related recreational uses of National Forest lands for environmental protection in the National Forest from which the

revenues are derived. With these funds, the Forest Service might be able to purchase water rights where available. Task Force Report at IX–4 to IX–5.

In addition, the minority members, embracing elements of the abandoned compromise, recommended that the Forest Service Manual itself be amended to direct

the Forest Service to require bypass flow conditions only if other strategies are either unavailable or inadequate to achieve National Forest purposes. 8 Task Force

Report at IX–10.

The fact that the minority members recommended that the Forest Service explore

other available options before requiring bypass flow conditions reflected a traditional respect for state water law and administration as well as a recognition of the

importance of federalism in such matters. It should not be construed to mean that

I or other members of the minority determined that the Forest Service lacked the

legal authority to impose such conditions. In fact, we concluded just the opposite,

that the imposition of a bypass flow is a legitimate exercise of the Forest Service’s

proprietary and regulatory authority over use of federal lands.

The authority to impose bypass flows as a condition of access to federal lands is

secured by the Property Clause of the United States Constitution. The Property

Clause provides that ‘‘Congress shall have Power to dispose of and make all needful

Rules and Regulations respecting the Territory or other Property belonging to the

United States.’’ U.S. Const., art. IV, § 3, cl. 2. The Supreme Court has upheld executive action preventing private entry on specified public lands, even where Congress

has authorized private entry generally. 9 While express delegation is not required,

Congress, in fact, has consigned land management authority to the Forest Service

pursuant to a long list of federal statutes beginning with the Organic Act of 1897. 10

For example, in making the grant or renewal of special land use permits contingent

upon a willingness to comply with bypass flow conditions, the Forest Service is actVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
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11See United States v. San Francisco, 310 U.S. 16, 29 (1940). 12 Utah Power & Light v. United States, 243 U.S. 389, 405 (1917); see also Light v. United

States, 220 U.S. 523, 536–37 (1911). 13 16 U.S.C. § 1765 (1994). 14 43 U.S.C. § 666(a)(1) (1994). 15See, Utah Power and Light Co. v. United States, 243 U.S. 389 (1917) (‘‘ . . . this is not a

controversy over water rights but over rights of way through lands of the United States, which

is a different matter . . .’’); Multiple–Use Sustained–Yield Act of 1960. 16See, California v. Federal Energy Regulatory Comm n, 495 U.S. 490 (1990); Riverside Irr.

Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir. 1985). 17 43 U.S.C. § 1765. 18Sierra Club v. Watt, 659 F.2d 203, 206 (9th Cir. 1981). 19See California v. Federal Power Comm n, 345 F.2d 917, 923–24 (9th Cir. 1965); see also,

Charles B. White, ‘‘The Emerging Relationship Between Environmental Regulations And Colorado Water Law’’, 53 U. Colo. L. Rev. 597, 618–19 (1982) (commenting on a similar savings provision in Section 101 of the Clean Water Act, 33 U.S.C. a1251(g)).

ing pursuant to its general authority ‘‘to regulate . . . occupancy and use’’ in the

National Forests under the Organic Act, 16 U.S.C. § 551.

The Supreme Court has characterized the power given through the Property

Clause over the public lands as without limits. 11 It includes the authority to protect

the public lands ‘‘from trespass and injury and to prescribe conditions upon which

others may obtain rights in them. 12 The United States, like any other property

owner, ‘‘should be expected to allow uses of and access to its lands only on conditions that are consistent with its land management objectives.’’ Task Force Report

at IX–6.

Congress has made clear that its land use management objectives for the National

Forests include the protection of fish and wildlife habitat and other environmental

resources. The Multiple Use and Sustained Yield Act (MUSY) specifically directs the

Forest Service to manage the National Forests for many uses, including fish and

wildlife. The National Forest Management Act (NFMA) recognizes that fish and

wildlife are public values that must be preserved on the National Forests. The Federal Land Policy and Management Act (FLPMA) mandates that the Forest Service

include terms and conditions in rights-of-way that will ‘‘minimize damage to scenic

and esthetic values and fish and wildlife habitat and otherwise protect the environment. 13 The Forest Service, therefore, is obligated to ensure that water diversion

structures permitted on National Forest lands do not damage environmental resources. Short of denying access entirely, bypass flow conditions represent the only

feasible method available to protect environmental resources in some instances.

The Task Force majority claimed that the Forest Service’s authority to control

land use is limited by the McCarran Amendment. 14 However, the McCarran

Amendment applies only if and when the United States is joined in a general

stream adjudication. ‘‘The McCarran Amendment does not purport to define the limits of Forest Service authority as a landowner or a sovereign to control activities

on the National Forests . . ..’’ Task Force Report at IX–7.

The majority also argued that the savings clause of FLPMA precludes the imposition of bypass flow conditions. Task Force Report at VI–2 to VI–3. The problem with

this argument is that it overreaches. Section 701(g) of FLPMA states that nothing

in FLPMA ‘‘shall be construed . . . as affecting in any way any law governing appropriation or use of, or Federal right to, water on public lands’’ or ‘‘expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water

resources development or control.’’ The Task Force majority reads § 701(g) as preventing any impact on individual state-created water rights, even those on federal

lands. Section 701(g) provides no such protection. It merely preserves the legal status quo between Federal and State governments. Under the law in existence at the

time FLPMA was passed, the Forest Service had the authority to restrict access to

National Forest lands and to impose conditions on that access intended to prevent

harm to natural resources. 15 Since the Forest Service had such authority prior to

the adoption of FLPMA, it retains that authority under § 701(g). In any event, such

a saving clause has no effect in the face of specific congressional purposes or mandates. 16 Section 505 of FLPMA merely states that conditions sufficient to minimize

adverse environmental impacts shall be imposed on all rights-of-way across National Forest lands. 17

The Task Force majority simply ignored existing case law to reach its conclusion

regarding §701(g). The United States Court of Appeals for the Ninth Circuit concluded that Congress intended the savings provision of § 701(g) ‘‘to mean that no

federal water rights were reserved when Congress passed [the Act]. 18 Language

similar to that of § 701g, common in federal statutes authorizing regulatory programs, has never been construed to preclude any and all impacts on water rights. 19

43

20See, United States v. City of Denver, 656 P.2d 1, 34 (Colo. 1982) (holding that ‘‘the federal

government has complete control over access to federally held geothermal resources and can

therefore fully regulate water appropriation’’). 21 Nevada Land Action Ass n v. United States Forest Service, 8 F.3d 713, 719 (9th Cir. 1993). 22Sierra Club v. Yeutter, 911 F.2d 1405 (10th Cir. 1990). See also Wyoming Wildlife Federation v. United States, 792 F.2d 981 (10th Cir. 1986) (suggesting that bypass flow requirements

were mandated by an environmental impact statement). 23See, In re Amended Application of the United States for Reserved Water Rights in the

Platte River, No. W–8439–76 at 9–13 (Colo. Dist. Ct., Water Div. No. 1, February 12, 1993).

In this instance, the Forest Service sought an adjudication of federal reserved water rights pursuant to state law in a state court. Water rights holders and the State of Colorado argued that

the Forest Service was not entitled to reserved water rights because of the agency’s ability to

protect its resources by controlling access and use on the National Forests. They asserted then

that this ‘‘approach ha[d] the added benefit of considering site-specific information regarding a

particular project at a particular location . . . . Certain Objectors’ Joint Opening Post–Trial Brief

Regarding Historical and Policy Issues (April 12, 1991) at 278 (signed by attorneys for the State

of Colorado and the Northern Colorado Water Conservancy District). 24Whether or not the JOP achieves its goal currently is the subject of a legal challenge. Trout

Unlimited v. United States Dept. of Agric., No. 96–WY–2686–WD (D. Colo. Filed June 5, 1995).

The fact that Trout Unlimited felt compelled to sue over the JOP does not negate the potential

effectiveness of these kinds of approaches to water management on the National Forests. It does

suggest that negotiations over permits for water diversion facilities ought to include all interested parties. Many, if not all, of Trout Unlimited’s objections to the JOP might have been resolved had the public, including Trout Unlimited, been allowed to participate fully in Forest

Service discussions with the permittees.

As long as bypass flow conditions are prompted by legitimate FLPMA purposes, any

incidental effect on water rights is permissible.

The authority to condition or deny access to National Forest lands for water diversion facilities has been recognized by both federal and state courts. The Colorado

Supreme Court found that the federal government may deny the use of a stategranted water right where its exercise is dependent upon a right of access across

public lands. 20 The United States Court of Appeals for the Ninth Circuit upheld the

authority of the Forest Service to limit the use of water resources in the National

Forests on the grounds that NFMA ‘‘directs the Service to manage conflicting uses

of forest resources. 21 Similarly, the United States Court of Appeals for the Tenth

Circuit held that the Forest Service’s failure to assert federal reserved water rights

was not ripe for adjudication, partially on the grounds that the Forest Service had

other options for managing its water needs, including administrative land controls. 22 Finally, in a Colorado water court case, the court held that the Forest Service’s permitting authority allowed it to preserve ‘‘favorable water flows’’ in the National Forests without the need to resort to reserved water rights. 23

Despite disagreement over the Forest Service’s authority to impose bypass flows,

many water rights holders with facilities on National Forest lands have found innovative ways to accommodate their water rights with the water needs of other forest

resources. To its credit, the Forest Service has shown a growing willingness to accept workable alternatives to the imposition of bypass flow conditions. For example,

the Joint Operations Plan (JOP) on the Arapaho–Roosevelt National Forest seeks

to optimize aquatic habitat on the Forest without any impact on water supply by

coordinating operations for a number of reservoirs. 24 The Forest Service accepted

the JOP as a permit condition rather than require bypass flows for the reservoirs.

Task Force Report at VIII–1 to VIII–6. The City of Boulder donated senior water

rights to the Colorado Water Conservation Board (CWCB) for instream flows. In

time of drought or emergency, the City retains its ability to call the water for municipal purposes, providing a safety net for Boulder citizens. Maintenance of these

‘‘imperfect’’ instream flows was incorporated, in lieu of bypass flows, as condition of

Boulder’s permit for a pipeline across National Forest land. Id., at VIII–10 to VIII– 12.

The Task Force majority members cite both the Arapaho–Roosevelt JOP and

Boulder’s donation of water rights to the CWCB as examples of creative compromises that are compatible with state law regarding water appropriations. I

agree. However, it is unlikely that either would have occurred without the Forest

Service’s legal authority to insist that its permittees leave some water in the

stream. As the minority members of the Task Force pointed out, although bypass

flows are infrequently imposed, ‘‘without the availability of this tool, efforts to secure voluntary protective measures would be seriously undermined.’’ Task Force Report at IX–6.

Recent Events

Since the Task Force filed its report with Congress in 1997, the Forest Service’s bypass flow authority has remained virtually unused and Forest Service practice

44

has remained cautious and respectful of state water law. The mere possibility that

its authority might be used has been controversial, however. In 1999, the Forest

Service’s Acting Deputy Chief issued a short guidance memorandum cautioning employees in the field not to settle federal reserved water rights claims in a manner

that would impair the Forest Service’s ability to impose bypass flows in the future.

(‘‘The ability to fully exercise discretionary regulatory authority over National Forest System lands, particularly during future permitting procedures for private water

diversion and storage facilities on national Forest System lands, must not be constrained, foregone, impeded or prohibited.’’)

In 2000, many commenters filed comments with the Forest Service on both sides

of the bypass flow issue in the context of the Draft Management Plan for the White

River National Forest.

Also last year, the Forest Service released a white paper in November, ‘‘Water for

the National Forests and Grasslands, Instream Flow Protection Strategies for the

21st Century.’’ The product of several years’ worth of effort throughout the agency,

this white paper echoes many of the themes sounded in the Task Force’s minority

report three years earlier. The paper reaffirms the Forest Service’s authority to impose bypass flows while simultaneously cautioning field staff to pursue collaborative

means for protecting water resources whenever possible. While not a regulatory document, the white paper suggests a total of ten strategies for the Forest Service to

pursue to fulfill its various mandates, including the requirement that it ‘‘minimize

damage to fish and wildlife habitat and otherwise protect the environment.’’ Bypass

flow authority is listed as one of these strategies.

The white paper emphasizes that the Forest Service must ‘‘develop sound objectives and standards in Forest Plans to use as the basis for any instream flow requirements specified in the terms and conditions of land use authorizations.’’ (p. 11.)

Moreover, the white paper stresses that, ‘‘[t]he cooperation of the States will be

sought wherever State laws meet our needs.’’ (p. 3.) In addition, the white paper

urges Forest Service staff to explore resolution of instream flow controversies in the

context of the public process that accompanies forest planning. The document mentions as one example, the ‘‘ pathfinder’’ watershed collaboration effort the Grand

Mesa–Uncompahgre–Gunnison National Forest in Colorado.’’ (pp. 9–10.) In short,

the white paper lays out a reasonable approach to the issue, expressly exhorting the

Forest Service staff to use the most effective tool in a specific situation.

The Forest Service has more often attempted to achieve its mission using the

strategies listed in the white paper other than imposing bypass flow conditions.

These attempts are often unsuccessful. For example, the Forest Service’s assertion

of federal reserved rights to protect its water resources, after decades of litigation,

has secured only a few dedicated rights. Nor has the Forest Service fared much better in appropriating other non-consumptive rights in state courts. And there are also

some severe limitations, varying state by state, on the efficacy of state instream flow

programs to provide sufficient protection for national water resources. As noted

above, cooperative and creative measures often can work but only if there is the possibility of regulation measures i.e., imposition of a bypass flow to focus negotiations.

Finally, just a few months ago, Agriculture Secretary Veneman affirmed the

Chief’s decision in an appeal involving the extent of the Forest Service’s authority

to impose bypass flows. The decision involved Forest Plans for both the Rio Grande

and Routt National Forests in Colorado. Both Forest Plans asserted the Forest Service’s authority to impose bypass flows in permits or rights-of-way for new facilities,

but limited the imposition of bypass flows for existing facilities to situations where

it would be ‘‘feasible.’’ Several environmental groups challenged this distinction on

the grounds that FLPMA does not distinguish between existing and new facilities,

and in fact, the NFMA specifically talks about revising existing permits to incorporate new protective provisions of Forest Plans. The Chief agreed with these

groups and the Secretary upheld the Chief’s decision insofar as he ruled that the

Forest Service could not adopt different standards for existing and new facilities

when considering the imposition of bypass flows.

Conclusion

For Congress or the Forest Service to turn away from the current practical approach would be folly. Given the many statutory underpinnings for the Forest Service’s goal of preserving water resources on forest lands, retaining the ability to impose bypass flow conditions where these are the best tool for the job remains critical

to achieving meaningful protection. It is not only legal for the Forest Service to impose bypass flows, even on existing facilities, it is necessary for the Forest Service

to be able to do so, both to fulfill its stewardship consistent with the Property

Clause of the U.S. Constitution and to fulfill its many other statutory directives.

The Forest Service has not exercised its authority unduly in the past. In fact, the

45

‘‘controversy’’ exists almost entirely over a theoretical disagreement with the Forest

Service’s legal position, rather than because of real disputes. In most instances

where the Forest Service has actually raised the possibility of its imposing a bypass

flow on an existing facility, there has been a successful negotiation of a solution that

protects both the water user who is seeking approval to use federal land and national objectives.

If anything, I would urge the subcommittees to consider the five consensus recommendations of the Task Force described above and propose legislation to enable

the Forest Service to use FLPMA revenues to buy water rights for the protection

of water resources on national forest lands.

Thank you for the opportunity to state my views. I would be happy to answer any

questions.

Mr. MCINNIS. Thank you, Mr. Getches.

Mr. Lynch?

STATEMENT OF ROBERT S. LYNCH, BYPASS FLOWS

CONGRESSIONAL TASK FORCE MEMBER

Mr. LYNCH. Mr. Chairman, members of the Committee, I appreciate the opportunity to appear here this afternoon and testify. I

am Bob Lynch. I am an attorney in Phoenix, Arizona. And as

David said, I was a member of the Federal Water Rights Task

Force.

I have supplied the Committee with written testimony, which I

ask be submitted for the record. I would like to make some separate remarks.

First of all, I am sorry to be here. I wish we had been able to

settle this issue with our report, and I wish the Forest Service had

owned up to the fact that they don’t have legal authority to do

what they are trying to do with bypass flows and other strategies

about coercing water rights out of nonfederal people and entities

that hold them.

I used to represent the Forest Service back in the days when I

was at the Justice Department and multiple-use wasn’t a dirty

word.

This isn’t an issue about the environment. I take issue with

former Senator Brown about this. It is not an issue about water.

It is an issue about arrogance.

In the November 30 policy, the Forest Service says they will use

state law whenever state laws meet our needs. Well, since the

founding of our country, state laws with regard to water rights

have always been what the Federal Government respected, not just

when they met their needs; they respected them period.

It is an issue about power. Page 2 of that policy: The Forest

Service wants instream flows for ‘‘desired conditions and beneficial

uses.’’ Whose desired conditions? Whose beneficial uses?

National forests are not national parks. Forests were established

for economic reasons. All of this outlined in detail in U.S. v. New

Mexico, an opinion written by current Chief Justice Rehnquist.

This is an issue about control. On the task force, the Forest Service repeated again and again, ‘‘We wouldn’t have this problem if everybody was like Arizona.’’

What is different about Arizona? We allow Federal agencies to

hold water rights, including instream flow rights. Now, Colorado

doesn’t do that. Idaho doesn’t do that. They have state entities that

hold these public water rights.

46

And the Forest Service can’t control that. They have to work

with states under those schemes. Well, they have to work with

states like Arizona under our scheme too, but at least they have

the title, and it makes them feel better. It makes them feel like

they are in control.

We don’t know whether they are in control yet, because we

haven’t finished our adjudications.

A couple of minor issues with my friend David Getches. I have

mentioned the control issue, and he says, ‘‘Well, there aren’t very

many of these instream flow rights the Federal Government has

that have been adjudicated.’’

Well, in Arizona, none of them have been adjudicated. They have

granted the agencies, not only the Forest Service but other agencies; they just haven’t been adjudicated.

The Arizona experience was different. The Forest Service said, if

you want your cattle grazing permit renewed, turn over your water

rights to the Forest Service, your stock ponds, your diversions, your

pipes. We weren’t going to do that.

And it created a little local war, and we are not through with

that issue yet. We don’t know exactly where it is going. Still the

same issue: permit authority and the use of it to take control of

water resources.

Ellie Towns, who was our Federal babysitter on this task force,

blurted out at one of the meetings, ‘‘You know, if we can’t get title

to the water, we will never get the cattle off the land.’’ I mean, she

said it.

And that is your problem. It is the embedded attitude of senior

managers within the agency that continue from administration to

administration that have a different view than Congress has given

them.

One last thing, if I might. There is no property clause basis for

this power. If there were, there would be no secondary purposes for

national forests under U.S. v. New Mexico and California v. U.S.

Everything would be a primary purpose and the Federal Government could ignore the states.

That is not what our Supreme Court has said. It is not the law.

It is not an appropriate constitutional basis. This power does not

exist.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Lynch follows:]

Statement of Robert S. Lynch, Appointed Member of the

Water Rights Task Force

Mr. Chairman, Members of the House Resources Committee, thank you for the

opportunity to appear here today and testify on the experiences and findings of the

Water Rights Task Force with regard to the Forest Service’s illegal use of bypass

flows. My name is Robert S. Lynch, and I was an appointed member of the Water

Rights Task Force, which was created in 1996 pursuant to Section 389(d)(3) of Public Law 104–127. Under this law seven voting members were appointed, one by the

Secretary of Agriculture, two by the Majority Leader in the Senate, two by the

Speaker of the House, and one each by the Minority Leaders of the House and Senate.

The Task Force’s creation was sparked by the controversy in Colorado regarding

the attempt by the Forest Service to use its permitting authority to require urban

and agricultural water users to relinquish a part of their water supply in order to

provide water for secondary purposes of the national forests. Additionally, we considered related issues in Arizona, Montana, Idaho, and Nevada, and examined

47

concerns brought to us from other areas, including California and Oregon. In Arizona, we focused on attempts by the Forest Service to use its permitting authority

to require that grazing allottees transfer title to non-federal water rights obtained

under State law to the United States.

In summary, the Task Force concluded that no legal authority exists that would

allow the Forest Service to require water users to relinquish part of their water supply in exchange for a facilities permit or permit renewal. Short of authorizing condemnation, Congress had not delegated to the Forest Service the authority necessary for that purpose. Additionally, we concluded that McCarran Amendment adjudications provided the appropriate forum for the Forest Service to test its theories

about the relative importance of water uses for federal and non-federal purposes.

We also concluded that the Forest Service must attain the secondary purposes of

the national forests by obtaining and exercising water rights in accordance with

state law and by working with owners on non-federal water rights to achieve national forest purposes without interfering with the diversion, storage, and use of

water for non-federal purposes.

Before coming to these conclusions, the Task Force met and conducted extensive

hearings. We also received considerable amounts of written testimony and other documents. The Task Force held its initial meeting on September 24, 1996. We held

a total of twelve meetings, including meetings in Reno, San Francisco, Boise, Denver, Portland, and Washington D.C. All meetings were open to the public. Oral and

written testimony was provided by water users, conservation groups, environmental

groups, state officials, and current and former federal employees. At our

Washington, D.C. hearing in the Dirksen Senate Office Building, we even were favored with testimony from then–Congressman David Skaggs of Colorado. The Task

Force spent considerable time searching for and discussing alternatives which would

avoid or reduce conflict between the Forest Service and water users.

To achieve this goal, we made extensive efforts to hear testimony from those impacted by the actions of the Forest Service, as well as the proponents of federal bypass flow authority. Tom DeBraggen with the Truckee–Carson Irrigation District

summed it up best when he stated that, ‘‘this issue is clouded by too much politics

and that local people should be heard.’’ Mr. DeBraggen also stated that, ‘‘the agencies need to protect endangered species, but that they should use common sense in

doing so.

An example of a need for common sense is the plight of Idaho Rancher Jack

Yantis. At the time of the Reno hearing, Jack and his wife Donna owned a quartermile ditch that crosses the Payette National Forest. The ditch had been in continuous use as originally constructed since 1924. The National Marine Fisheries Service determined that his ditch was likely to affect an endangered fish. Although Mr.

Yantis was invited to attend meetings with Forest Service personnel, the Forest

Service ultimately installed 80 yards of pipe, which prevented Mr. Yantis from diverting water from Boulder Creek into his ditch. At the time of the Reno hearing

in 1996, Mr. Yantis had been without water for four years.

Even my esteemed colleague, Professor David Getches, acknowledged that Mr.

Yantis had no forum in which to discuss the bypass flow conditions the Forest Service was imposing on him. Professor Getches further indicated the need for a process

in which an individual property owner, such as Mr. Yantis, would be able to have

a voice in protecting his vested property rights in an efficient manner. As of 1996,

when the Task Force heard the testimony of Mr. Yantis, the Forest Service did not

have such a process in place. As evidenced by their November 30 policy statement,

it still doesn’t.

The Task Force also heard testimony from environmental group representatives

claiming that commercial industries benefit from bypass flow requirements. In San

Francisco, Louis Blumberg of the Wilderness Society testified in favor of the Forest

Service, stating that it should be allowed to retain the bypass flow program since

it seems to be working well in California. In addition, Mr. David Nickum of Trout

Unlimited emphasized that bypass flows help to maintain the resources necessary

for commercial fisheries. It is clear from this testimony that the Task Force was

faced with a daunting challenge: balancing the protection of water rights of cities

and towns and ranchers and farmers with the interests of environmental groups

and, possibly, commercial fisheries and other advocates of bypass flows.

In April 1997, the Task Force traveled to Washington, D.C. and conducted an

open meeting in the Dirksen Senate Office Building where, as I mentioned previously, former Representative Skaggs addressed the Task Force. He encouraged

practical solutions, putting aside both states’ rights and federal supremacy issues.

He suggested ideas such as using non-profit dispute resolution firms with environmental expertise, having a cooling-off period before any litigation commences, and

evaluating the last best offer with a mediator. The Task Force also heard from

48

representatives from Senator Allard’s office as well Representative Schaffer’s office.

They acknowledged that not every conflict is a win-win situation for all parties involved, and tough decisions will be necessary to resolve these conflicting interests.

Ultimately, the Task Force made the necessary tough decision in concluding that

the actions of the Forest Service, while beneficial to certain parties involved, were

without any legal foundation. Specifically, no legal foundation was found in The Organic Act, FLPMA, or the NFMA. Additionally, Congress had not enacted or authorized a federal permit system to allocate water between federal and non-federal purposes. Most importantly, the actions by the Forest Service raised important 5th

Amendment takings issues. Congress clearly has plenary authority to manage and

protect National Forests. Congress may be able to reach beyond the federal land

boundaries under the Property Clause to regulate activity for the protection of federal property. However, the Supreme Court made it quite clear in United States v.

New Mexico that water rights for secondary forest purposes must be acquired under

state law. As the Court said, national forests are not reserved ‘‘for aesthetic, environmental, recreational, or wildlife-preservation purposes.’’ Attempting to create, in

effect, a federal water right for these secondary purposes by imposing permit restrictions on non-federal water users is simply illegal. It is also foolish. Federal coercion

that cannot be legitimized in adjudications leaves non-federal water users damaged

and federal land managers without any assurance of a permanent water supply. No

one wins.

In light of the absence of statutory or constitutional authority, the majority of the

Task Force made several recommendations to Congress as possible solutions. First,

the Forest Service should pursue alternative management strategies which do not

require a change in ownership or exercise of water rights before considering any acquisition of new Federal water rights for National Forest purposes. Second, where

state laws allow water rights, reservations, or conditions to be established for protection of instream flows, the Forest Service should use these laws to attain National Forest purposes. Finally, whenever possible, the Forest Service should seek

voluntary agreements with non-federal water rights holders. I am confident that

these recommendations came from a solid foundation of information gathered by the

Task Force. I am disappointed that they were effectively ignored by the Forest

Service.

Mr. MCINNIS. Thank you, Mr. Lynch.

Mr. Gauvin?

STATEMENT OF CHARLES GAUVIN, PRESIDENT AND

CHIEF EXECUTIVE OFFICER, TROUT UNLIMITED

Mr. GAUVIN. Mr. Chairman, Committee members, I appreciate

the opportunity to appear today to present Trout Unlimited’s views

on the protection of fishery and water resources on our nation’s national forests.

In my oral testimony, I would like to make three points about

bypass flows, and then I want to describe, briefly, a very hotly contested bypass flows case—that involving the Long Draw Reservoir

in Colorado where my own organization has been engaged.

Before I go into the bypass flows observations that I have, I just

want to note that while the chart you saw on Colorado’s instream

flow program appears impressive, you have to bear in mind that

those are very junior water rights.

They are not evenly monitored. They have almost never been enforced. And therefore, although there is a lot of ink on that map,

it is a lot less impressive than it would seem.

Now, regarding the bypass flows situation, contrary to the Committee’s letter of invitation here today, this is not a new phenomenon. Bypass flow conditions in the Forest Service land use authorizations date back to the 1970’s.

Secondly, as has been noted earlier today, it has been a very,

very rarely and very, very modestly used tool. I won’t repeat the

49

statistics, but I will note that, in the few cases in which bypass

flows have been required, mandated releases have been minuscule,

on the order to 1 to 5 percent of a particular water diversion.

Almost all water users up here recognize that the release of a

minimal amount of water is a fair quid pro quo for the use of reserved public lands.

And then third, the controversy about bypass flows is not about

water law or water rights. It is about the Forest Service’s ability

to be a good steward of the public lands and fish and wildlife resources with them. That is why the National Forests Management

Act and FLPMA were passed.

Dams and other water diversions, as we know, often have adverse and sometimes extremely adverse, devastating effects on watershed health. According to the Western Water Policy Commission

report, 70 percent of the West’s native fish are imperiled or extinct.

Bypass flow authority is about managing aquatic habitats to try to

restore and maintain those resources.

Now, to the Long Draw Reservoir litigation. La Poudre Pass

Creek flows out of Rocky Mountain National Park on the ArapahoRoosevelt National Forests. Long Draw Reservoir stores the creek’s

water for release to downstream irrigators.

Without a bypass flow requirement, the reservoir’s gates are

closed at the end of the irrigation system and aren’t reopened until

the following spring. So it is important to bear in mind that for 6

months a year, La Poudre Pass Creek is dry. Without year-round

water, that stream does not support a fishery, and its larger watershed functions are severely impaired.

When the Forest Service reissued the Reservoir’s special use permit, they prepared an EIS, and the EIS noted that the only way

to meet the aquatic goals in the forest plan was by a bypass flow.

Now, in hindsight, this was an unusual step that Forest Service

took. Frankly, I think we all would have been better off if the Forest Service in this case had pursued a negotiated solution on this

one. But this is what the Forest Service opted to do.

In the end, though, the Forest Service decided not to—it was a

sudden shift of position—it decided not to impose a bypass flow and

instead imposed the Joint Operating Plan, essentially a voluntary

agreement with the water users.

At the same time, the Forest Service’s own biologists and hydrologists analyzed the Joint Operating Plan and concluded that its

purported benefits for fisheries and other resources were, I quote,

‘‘unfounded from a physical and biological perspective.’’

Well, after attempting to resolve the matter by voluntary agreement, by negotiation with the Forest Service and with the Long

Draw Reservoir operator, Trout Unlimited was forced to challenge

this by administrative appeal, and then upon the denial of that appeal, was forced to litigate it.

Our basic contention is that while the Joint Operating Plan in

some ways mitigates habitat damage caused by the Reservoir, it in

no way minimizes that damage as required by FLPMA.

We remain open to a negotiated solution. There have been discussions between us and the water supply and storage company.

And of course, we remain open to a negotiated solution and would

prefer one.

50

I have to say that, in perspective, the chain of events leading to

this litigation fairly illustrates the difficulties the Forest Service

faces when renewing these land use authorizations. And if you take

away the bypass flow authority, there will be no venue for negotiated solutions. And essentially, we will be in the boat that David

Getches so aptly described.

In closing, I want to leave you with just a view of a couple of

photographs.

This is La Poudre Pass Creek below Long Draw Reservoir. And

as you can see, if this is your idea of perfect Colorado trout stream

or good quality aquatic habitat, then you really need to look for the

water. It is just not there. This is seriously degraded and damaged

habitat.

The other one I want to show you is, this is the inflow of

Idylwilde Reservoir on the Big Thomspon River. And then I want

to show you the outflow. This is a bypass flow. This is the amount

of water we are talking about. We are not talking about a big piece

of that inflow. We are talking about a very modest amount of

water.

That will conclude my remarks. Thank you.

[The prepared statement of Mr. Gauvin follows:]

Statement of Charles F. Gauvin, President, Trout Unlimited Inc.

Mr. Chairman and committee members, good afternoon. I appreciate the opportunity to address the subcommittees today regarding the protection of our nation’s

fish and wildlife.

I am the President of Trout Unlimited (TU), a national, non-profit organization

dedicated to the conservation, protection and restoration of North America’s trout

and salmon fisheries and their watersheds. Prior to joining TU, I practiced law here

in Washington D.C. at Beveridge and Diamond, where I specialized in permitting

under the federal Clean Water Act.

TU has over 130,000 members nationally. Many of our members recreate on National Forest lands, and are also involved in partnerships throughout the country

with the Forest Service staff on fish habitat restoration projects. Thus, for TU, the

topic for today’s hearing is an important one: protecting fish and wildlife resources

on the National Forests by requiring water diverters using National Forest land to

allow a trickle of water to flow in the streams on these public lands.

Characterization of Issue for Hearing

As a preliminary matter, I would note that I disagree with the characterization

of this issue in today’s hearing. It is TU’s position that the Forest Service has legal

authority for its rare imposition of bypass flows for the land use authorizations it

grants. Indeed, the Forest Service is required by the Federal Land Policy Management Act and other laws to protect fish and wildlife habitat by conditioning those

authorizations.

For three separate reasons, I also disagree with the statement in the letter of invitation for this hearing that there are ‘‘adverse implications of [a] newly promulgated [bypass flow] regulation on water users.’’ First, the Forest Service’s use of bypass flow conditions dates to the 1960s, so it is simply wrong to characterize the

authority as of recent origin. Even during the two-year period in the 1990’s when

the Secretary of Agriculture limited the Service’s ability to impose bypass flows, he

did so only in the context of existing facilities undergoing re-issuance of permits,

where the previous permit had not included a bypass flow condition.

Second, there is simply no ‘‘newly promulgated regulation’’ regarding this tool for

fish and wildlife resource protection. The recent Forest Service white paper (Water

for the National Forests and Grasslands, Instream Flow Protection Strategies for

the 21st Century, November, 2000) is a guidance document completely consistent

with 40 years of past policy and practice. The white paper discusses the imposition

of bypass flow permit conditions as only one of ten strategies that the Forest Service

can use to protect its aquatic resources. The authors expressly caution field staff to

impose a bypass flow permit condition only when it would be the most effective tool

to accomplish the Forest Service’s mission.

51

Third, there is virtually no verifiable evidence of real harm to existing water

users. After 18 months of hearings, the Federal Water Rights Task Force was unable to find any actual examples of water users being adversely affected by the imposition of a bypass flow condition in a Forest Service permit. The Task Force’s

record is consistent with a Freedom of Information Act request TU submitted to elicit all information pertaining to Forest Service permits with bypass flow conditions.

In the responses to our request, there were fewer than 20 such conditions imposed

in the over 8000 currently active special permits.

Moreover, in cases where bypass flows have been imposed, there is no evidence

that the releases are large. To the contrary, bypass flows typically require the release of between one and five percent of a particular water diversion. (A visual example of the minimal flows required, in this instance on the Big Thompson River

in Colorado, is attached.) Often, this amount is minuscule in comparison to what

the stream needs to meet its functions within the ecosystem. When a user of reserved federal lands receives a free right-of-way to build a project that will dry up

a stream, it hardly seems burdensome that the land user be required to release an

absolute minimum flow in a stream, rather than dry the stream up completely.

There are several places in Colorado, where even the state’s instream flow program

has appropriated (e.g., St. Louis Creek) or is seeking to appropriate (e.g., Yampa

River) a higher flow than the Forest Service’s bypass flow permit condition.

The Forest Service’s Missions

The bypass flow ‘‘controversy’’ is not about water law; it is about the Forest Service’s responsibilities and authorities to execute national policy on National Forest

lands.

The federal Property Clause of the U.S. Constitution provides that, ‘‘Congress

shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.’’ As one of the

nation’s major land stewards, the Forest Service’s actions with regard to forest lands

are governed by a number of different congressional authorizations and directives.

Starting with the Forest Service’s Organic Act of 1897, Congress directed the Forest Service to ‘‘secure favorable water flows’’ of the waters that cross the National

Forests and to ‘‘regulate occupancy and use’’ of the nation’s forest lands. The Federal Land Policy Management Act (FLPMA) requires the Forest Service to impose

terms and conditions in the permits and rights-of-way it grants that ‘‘minimize damage to—fish and wildlife habitat.’’ In the National Forest Management Act (NFMA),

the basic purpose of which is to provide for forest planning, Congress recognized

that the public values the Forest Service must preserve include fish and wildlife.

Finally, the Multiple Use and Sustained Yield Act again directs the Forest Service

to manage the forests for fish and wildlife purposes.

Legality of Forest Service Exercise of Bypass Flow Authority

The common thread that runs through these various directives and authorities is

that the Forest Service has both an obligation to manage its lands in a way that

preserves the nation’s fish and wildlife resources, and the tools to accomplish this

goal. Derived from the Property Clause, as they are, these powers are significant.

Those who oppose the imposition of bypass flows must show that the Forest Service

does not have the authority to regulate those who come upon the National Forests

to divert water. I believe that Professor Getches will address in his testimony the

reasons why meeting this burden is not possible given the directives and authority

granted to the Forest Service under the Property Clause, the Forest Service’s Organic Act, FLPMA and NFMA.

I would like to add my own thoughts on two other constitutional issues that bypass flow opponents have raised. First, there have been rumblings that the imposition of a bypass flow somehow constitutes a prohibited taking of property under the

U.S. Constitution’s Fifth Amendment. Second, one creative group of attorneys has

even suggested that the Constitution’s Tenth Amendment prohibits the imposition

of bypass flows in conflict with a state’s water rights system. Neither of these contentions has any merit.

The imposition of a bypass flow is highly unlikely to lead to a successful claim

that the Forest Service has taken the permittee’s or right-of-way owner’s property.

For one thing, it has never been the case that the grant of a vested water right by

any state authority includes a guarantee of access over federal land. As experts

have noted repeatedly, to divert water, one needs both a water right and access to

the water. In some states, such as Colorado, the holder of a water right can condemn a right-of-way or easement to access water; however, that power does not, of

course, extend to a private entity’s condemnation of federal land. The Forest Service’s imposition of a bypass flow is separate and apart from the state’s water law

52

25Minckley, W.L. (1997). Sustainability of western native fish resources. In W.L. Minckley

(Ed.), Aquatic Ecosystem Symposium (pp. 65–78) Denver, CO. Western Water Policy Review Advisory Commission. Available at http://www.den.doi.gov/wwprac/reports/aaquatic.htm.

system. Nothing in law suggests that a takings occurs merely because the Forest

Service might reasonably condition a private party’s use of federal land in order to

meet federal statutory directives requiring the Forest Service to maintain fish and

wildlife and other values.

The contention that the imposition of a bypass flow violates the Tenth Amendment can be similarly dismissed. The Supreme Court has characterized the Property

Clause as an almost limitless power. The Forest Service’s bypass flow authority derives directly from the Property Clause, through the various congressional grants

of authority in the Organic Act, FLPMA and NFMA. Nothing in the recent Tenth

Amendment jurisprudence suggests that the Tenth Amendment stands as a bar to

federal regulation of private parties using federal lands. Notwithstanding the deference that Congress has always shown to state water rights systems, it is simply

not possible to squeeze the imposition of a bypass flow as a condition upon the use

of federal lands under the umbrella designed to protect state sovereignty.

Impacts of Dams and Diversions on Fish and Wildlife Resources

While I certainly recognize the sensitivity that surrounds this issue, I believe that

it is important to take a step back and look at the reason that the Forest Service

ever considers imposing a bypass flow in a special use permit to fulfill its statutory

obligations toward fish and wildlife resources on forest lands.

The Forest Service acts as the landlord for large swaths of our nation’s public

lands. Thousands of entities seek permission from the Forest Service to use the public lands for a variety of purposes. As the federal landlord, the Forest Service considers each request to use federal land and issues permits to virtually all who request. Among those requesting the privilege of using federal lands are water users

who seek to build and operate dams on public lands, or to cross National Forest

lands for the purpose of diverting water from the rivers and lakes within the federal

reserve.

Dams and diversions often have adverse effects on watersheds. A loss of flow, in

terms of timing, velocity, or volume, can change a stream channel by stopping the

movement of sediment, by increasing water temperature and by exposing usually

wetted habitat. It is axiomatic that fish need water every day. However, a loss of

water in a river system has impacts far beyond the fishery. Riparian areas, particularly wetlands, protect lands downstream from flooding. Also, many wildlife species

depend on healthy riparian habitat for sustenance. In addition, there are numerous

species for which fish and other aquatic life are an important part of their food

sources. The water that dams and diversions on National Forest lands supply to agricultural, municipal and industrial users is, of course, a part of the very fabric of

our society. However, we have learned in the last few decades that this supply has

been made available at a cost. Most dramatically, perhaps, is the fact that over 70

percent of our native fishes west of the Rockies are imperiled or already extinct. 25

There are economic costs as well, from the huge increases in salinity throughout the

Colorado River basin, which the federal government is spending hundreds of millions of dollars to abate, to the loss of commercial fisheries from Northwestern salmon, to the declining Colorado River delta shrimp fishery. It is these very real economic and ecologic losses that drove Congress to direct the Forest Service to do a

better job of granting permits to allow people to use forest lands that, at the same

time, protect our nation’s resources.

Long Draw Reservoir Litigation

I am painfully aware that the lawsuit TU filed in 1995 challenging the Forest

Service’s failure to impose a bypass flow when re-issuing a permit for Long Draw

Reservoir has caused significant controversy. For the record, I would like to clarify

our goals for this case. La Poudre Pass Creek flows out of Rocky Mountain National

Park to form the boundary between the Comanche Peak Wilderness area and other

Arapaho–Roosevelt National Forest land. Ultimately, La Poudre Pass Creek joins

the Cache La Poudre River, Colorado’s only river designated under the Wild and

Scenic Rivers Act. Long Draw Reservoir stores water for release to downstream

irrigators. Without a bypass requirement, the operator closes the reservoir’s gates

at the end of the irrigation season each year and does not begin to release any water

again until the following spring. Thus, for six months, La Poudre Pass Creek below

the reservoir is dry. Obviously, since fish need water every day, this means that La

Poudre Pass Creek does not support a fishery and its larger watershed functions

53

26Trout Unlimited v. Dept. of Agric., No. 96–WY–2686–WD (D. Colo. Filed June 5, 1995), Administrative Record (Longdraw) at 4483. 27Memorandum from N. LeRoy Poff to Steve Moyer, Trout Unlimited regarding ‘‘Review of

Trout habitat evaluation for Joint Operatings Plan flows November 1994 through March 1995

and November 1995 through March 1996’’ (Miller Ecological Consultants, Inc. 1997) dated November 10, 1977.

are severely impaired. Attached to my testimony are pictures of La Poudre Pass

Creek above and below Long Draw Reservoir.

When the Forest Service was faced with re-issuing a permit for the reservoir, the

Forest Service did an Environmental Impact Statement. In the EIS, the Forest

Service determined that the only way to fulfill its duty not to damage fish and wildlife habitat was to require a bypass flow from the reservoir during the six months

when the stream would otherwise be dry. Notwithstanding this determination, however, the Forest Service instead opted not to impose a bypass flow condition in the

permit. Instead, the Forest Service agreed to the applicant’s proposal to participate

in a voluntary Joint Operating Plan (JOP), along with several other water users in

the Cache–La Poudre watershed. There were several problems with the JOP. Most

importantly, the JOP provided no additional stream flow in La Poudre Pass Creek

below the reservoir, although the JOP did put some additional water into certain

tributaries and the Poudre mainstem. In addition, the water users and Forest Service refused to allow TU or other members of the public to participate in any of the

meetings or negotiations that led to the JOP, even though TU had commented extensively on the EIS.

Although I have the utmost respect for the Forest Service’s decision-making processes, the process by which the Forest Service came to a final decision in the Long

Draw case was severely flawed, both procedurally and substantively. The procedural

flaws are the subject of the above-referenced litigation, and I will not reiterate them

here, except to note that the record of decision does not explain sufficiently why the

agency chose to ignore the analysis of its own fishery biologist, who found that, in

comparison to the bypass flow alternative, the JOP’s purported benefits were ‘‘unfounded from both a physical and a biological perspective. 26

Subsequent analysis of the JOP by Dr. N. Leroy Poff of Colorado State University,

who formerly served as TU’s senior scientist, but reviewed the JOP in 1997 as an

independent consultant, corroborates the findings of the Forest Service biologist. Dr.

Poff’s conclusion is that the JOP ‘‘contains unsupported assumptions and unjustified

extrapolations that critically undermine the conclusion that the JOP will provide

more ecological benefits to the Cache La Poudre—Basin than will [the bypass flow

alternative]. 27

After attempting to resolve this matter by agreement with the Forest Service and

the applicant, and left with no other means to assure flowing water in La Poudre

Pass Creek, TU challenged the Forest Service’s final action in federal district court

in 1995 on the grounds that the Forest Service’s ultimate solution (the JOP) did not

minimize damage to fishery habitat in La Poudre Pass Creek, as required by the

Federal Land Policy Management Act. This case is still not resolved. It was put on

hold during the pendancy of the Federal Water Rights Task Force. Thereafter, the

parties discussed settlement, but to no avail. The parties have recently filed briefs

with the court and expect a ruling sometime in the not-too-distant future. In the

meantime, TU has continued to pursue a negotiated solution and remains open to

proposals that meet the objectives of both the water users and the forest plan.

The Tools Available to the Forest Service to Fulfill its Missions

In trying to accommodate all those who want to use federal lands to develop

water, i.e., who want rights-of-way or permits to build, operate, and have access to

dams and diversions that store and carry water across the forest to private land for

private use, the Forest Service has to balance a congressional directive to allow multiple use with the directives to protect the environment and fish and wildlife habitat. As its recent white paper suggests, the Forest Service has a number of ways

to achieve its missions. Unfortunately, many of the tools described in the white

paper have significant limitations.

• Obtain Reserved Water Rights. The Forest Service has had little success anywhere in the West in obtaining reserved rights through McCarran Act adjudications. In fact, in Colorado, for the Forest Service’s claims in the South Platte

River Basin, both the state and other water users argued (among other things)

that the court should deny the Forest Service’s application because the Forest

Service could adequately protect flows on National Forest lands with its bypass

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28 In Re Amended Application of the United States for Reserved Water Rights in the Platte

River No. W–8439–76 Colo. Dist. Court Water Div. No. 1 Feb 12, 1993, Final Opinion (unpublished), pp. 9–13.

flow authority. The judge accepted this argument. 28 Western water users and

western states have fought virtually all applications for reserved water rights

and at least insofar as the Forest Service’s claims go, they have succeeded in

defeating all but a few of the Forest Service’s claims. • Obtain Appropriative State–Law Rights. Only five or six states west of the Mississippi even allow the Forest Service to obtain such rights, but in those states,

the Forest Service has had at least some success in obtaining rights this way.

A significant disadvantage of this approach, of course, is that in many places,

obtaining a 2001 water right priority will not allow for meaningful protection

of aquatic resources.

• Exercise Regulatory Authority. It is using this strategy that would lead the Forest Service to impose a bypass flow condition in a permit or right-of-way. Even

today, the Forest Service imposes such conditions in a quite limited fashion, particularly on existing facilities.

• Use State Instream Flow Programs. States have long urged the Forest Service

to rely on their instream flow programs in lieu of any federal action to preserve

healthy flows on National Forest lands. While there may be instances where

state programs can provide adequate protection, they are less frequent than we

all might hope. This is because most state instream flow programs are seriously

limited. As relatively new programs in the world of water rights, they often do

not command senior enough priority dates to provide meaningful protection.

Many are limited as to who can hold or enforce an instream flow right, thus

requiring the Forest Service to rely on a third party not only to appropriate a

sufficient quantity of water, but also to make the calls and otherwise enforce

the right. The likelihood that the actual holder of the water right may disagree

with the Forest Service regarding enforcement significantly lowers the effectiveness of this strategy to fulfill federal requirements. Most state programs are

also limited in the quantities of water they may appropriate, usually to minimum amounts, and further constrained by other state actions. For example, in

Colorado, state instream flow rights are subordinate even to undecreed water

uses, a restriction placed on no other state water right.

• Buy/Lease Instream Flow Rights. Where this works without the problems associated with many state instream flow programs, it is a promising approach, provided that Congress agrees to fund such efforts at sustainable levels.

• Develop Cooperative Agreements. TU believes that this approach can be a positive way of resolving disputes with permittees. Unfortunately, we have also

learned that, without public involvement or a mandate that provides incentives

reaching agreements, negotiating may be inadequate. We would encourage the

Forest Service and Congress to ensure that the pursuit of cooperative agreements is done in an open manner, with all interested parties participating.

• Coordinate with Downstream Users. Similar to the strategy of using cooperative

agreements, this approach allows the Forest Service to take advantage of downstream users’ calls on the river as a mechanism to pass water across National

Forest land. Again, TU supports this type of coordination as leading to win-win

situations, provided that all interested parties are involved in the deal-making.

• Use FERC License 4(e) Conditions. Section 4(3) of the Federal Power Act of 1920

requires that hydropower licenses include reasonable terms for ‘‘the conservation, protection, mitigation of damage to and enhancement of, fish and wildlife,

recreation and environmental quality.’’ Where there is a hydropower facility on

National Forest lands, the Forest Service participates in licensing, or re-licensing, proceedings to advance its opinion regarding such terms. Since the ultimate

outcome is often a bypass flow requirement, these conditions can be controversial in the same way that bypass flows imposed under FLPMA authority are.

However, the even stronger directive in the FPA has meant fewer objections to

these types of bypass flow requirements. (But, there are exceptions; for example,

the current re-licensing of the El Dorado Irrigation District’s facilities on the

South Fork of the American River in California.)

• Set Forest Plan Instream Flow Standard. The National Forest Management Act

focuses the Forest Service on adopting management plans for each National Forest. To fulfill its responsibilities to minimize damage to fish and wildlife habitat,

as well as to protect the environment, it is appropriate for the Forest Service

to adopt standards within its plans specifically to provide guidance regarding

stream preservation. In the Grand Mesa–Uncompahgre–Gunnison National Forest in Colorado, a TU volunteer is currently participating in a ‘‘pathfinder’’

55

project in advance of re-drafting that forest’s plan to develop such a standard,

and perhaps more importantly, a set of strategies for use in protecting instream

flows on Forest Service lands.

• Use Eminent Domain Power. I am unaware of any instance where the Forest

Service has exercised its power under the Fifth Amendment to condemn a water

right. Certainly, were the Forest Service to use this power, and provide just

compensation, there could be no claim of illegality. Nonetheless, I suspect that

the water user community would be outraged by such an exercise of federal

power.

Conclusion

TU would urge these committees not to propose legislation regarding bypass

flows, other than to make funds available for the Forest Service to buy water back

for its de-watered streams. To do otherwise would significantly weaken the Forest

Service’s ability to protect public land resources using the means available to it.

The Forest Service, as one of the nation’s largest land manager, needs all of the

tools available to ensure adequate protection of National Forest lands. Bypass flow

conditions are one such tool. There is no concrete evidence that the Forest Service’s

exercise of this authority has substantially harmed existing water users. This is because the Forest Service has sought to reach accommodations through other means

and has imposed bypass flows only rarely.

The Forest Service’s continued ability to impose bypass flows is, of course, one

reason why permittees and those seeking rights-of-way have been willing to sit at

a table to look for alternative mechanisms that can achieve the Forest Service’s statutory responsibilities to protect its fish and wildlife resources. Taking away the Forest Service’s ability to seek a bypass flow will, without doubt, also take away any

incentive for water users to negotiate alternatives. If the Administration and Congress are serious about maintaining our nation’s fish and wildlife resources, they

will leave the Forest Service the authority to continue its current policy.

Mr. MCINNIS. Thank you. I appreciate your comments.

Mr. Treese, you may proceed.

STATEMENT OF CHRIS TREESE, EXTERNAL AFFAIRS,

COLORADO RIVER WATER CONSERVATION DISTRICT

Mr. TREESE. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to visit with you today to share

some concerns and views on this clearly contentious issue.

From the outset, I would like to acknowledge that I distinguish

between the practice of conditioning with bypass flows or other conditions new permits versus a relatively new practice of forcing

water users to forfeit historical water rights, some of which have

been in continuous for 50 years, when renewing a permit.

You have heard the legal arguments for and against bypass flows

and the authorities which grant the Forest Service that opportunity. It is my testimony, however, that irrespective of the legal

authority, that this is simply a failed practice; that it does not, in

fact, accomplish what the Forest Service intends; that there are

successful alternatives, some of which have been described here

today; and that other agencies of the Federal Government are, in

fact, finding alternatives to accomplish the stated goals which the

Forest Service claims under the bypass flow conditions without the

generating the same hostility, litigation and air of distrust that bypass flows engender.

We are also concerned about the institutionalization of this practice, especially in the White River National Forest plan that the

Chairman mentioned.

Until the last couple years, bypass flow practices had only existed in a limited number of forests and apparently on a discreVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 72514.TXT HRESOUR1 PsN: HRESOUR1
56

tionary basis. But with the White River National Forest draft management plan, it appears it is becoming institutionalized.

That plan, in the goals and objectives section, states that the

Forest Service shall acquire instream flow protection measures

through special use permit authorizations. That places more than

31 reservoirs and 200 water diversions, which exist under special

use permits in the White River National Forest, each at risk of

Federal taking as a result of this draft objective.

The irony is that the White River National Forest has been the

one forest that previously has not engaged in bypass flows and, in

fact, has respected the state’s instream flow program that Mr.

Holsinger described and the state’s authority to adjudicate and administer Colorado water.

When the Aspen Ski Company requested the state review the

water conservation board’s instream flow filings on Snowmass

Creek, the White River forest stayed out of the ensuing environmental suits. When the White River forest desired protection for

Dead Horse Creek and Hanging Lake, that Mr. Holsinger described, the White River forest approached the state, and the state

adjudicated the entire stream flow of Dead Horse Creek and also

maintained by filing on protective lake levels for Hanging Lake.

Further, the draft management plan gave no indication of why

the White River forest had abandoned its historical and successful

practice of partnering with state agencies and local interests to accomplish these goals.

Our recommendations are that the Forest Service first consider

nonappropriative alternatives. Direct mitigation of deficient or atrisk habitats, such as drop structures, stilling pools, stream bank

stabilization programs, have all proven to be successful alternatives.

Second, the Forest Service should explore cooperative ventures

with permit holders to consider existing permitted facilities as a resource rather than as an insult, and the opportunity to reoperate

those existing facilities without loss of yield to the permittees, such

as was the eventual settlement of most of the Arapaho-Roosevelt

forest litigation.

However, I would take exception to Mr. Getches’s testimony. The

existence of bypass flow authority does not create the collaborative

environment that he suggests. In fact, I suggest that it is not even

possible to have this kind of discussion between the Forest Service

and current permittees under the relationship with the Forest

Service seen as Big Brother unilaterally imposing its will without

regard to existing private or public property rights.

Proper forest management practices, such as vegetative reductions through commercial harvest or controlled burns and other

measures, will not only reduce fire dangers but also increase the

yield of water from the forests.

Finally, when new rights are desired, the Forest Service should

follow traditional and proven adjudication of Federal rights under

state law in companion with the Federal McCarran amendment.

These are both appropriate for appropriative rights, new appropriative rights, and reserved rights where Congress has established

them. If junior rights are not sufficient for protective measures,

they can work with existing water rights holders to acquire legal

57

interest in that water and then convert those or donate those to the

water conservation board so that in fact that water can be legally

administered.

Since bypass flows permit conditions do not create a water right,

bypassed water is legally available to the next downstream diversion, including downstream Forest Service permittees who have not

have the misfortune of a recent renewal of a permit.

Even those who construe the legal authority for the Forest Service to condition permits must concede that the practice does not

inure the benefits for which the bypass is imposed.

Therefore, I respectfully ask this Committee to act in any way

possible to discontinue the Forest Service practice of conditioning

permit renewals with counterproductive bypass flow conditions and

to direct the use of constructive alternatives, which in fact accomplish the goal the Forest Service contends are the purposes for

which they are imposing these flows.

I will conclude my testimony.

[The prepared statement of Mr. Treese follows:]

Statement of Christopher J. Treese, External Affairs, Colorado River Water

Conservation District, Glenwood Springs, Colorado

I want to thank Congressman McInnis for this opportunity to share the Colorado

River Water Conservation District’s concerns and recommendations regarding the

U.S. Forest Service’s practice of conditioning permits with bypass flow requirements. I also want to extend our gratitude to Chairmen McInnis and Calvert for

sponsoring a hearing on this important issue.

The Colorado River Water Conservation District is the principal policy body for

the Colorado River within Colorado. We are a political subdivision of the State of

Colorado responsible for the conservation, use, and development of the water resources of the Colorado River basin to which the State of Colorado is entitled under

the 1922 and 1948 Colorado River compacts. The River District includes all or part

of 15 counties in west-central and northwest Colorado, including six different National Forests.

As a member of the third panel for this hearing, I will forego any lengthy legal

critique of the Forest Service’s practice of imposing bypass flow conditions on waterrelated permits and rights-of-way. Instead, I would like to focus on the practical failure of this particular permitting practice. Accordingly, I will cite a specific example

of the Forest Service’s failure to accomplish its stated purpose in imposing these

conditions, as well as an example of another federal agency’s success with an alternative approach. Additionally, I will describe the treatment of bypass flows in the

White River National Forest planning process. Finally, I will conclude by offering

several constructive alternatives that accomplish the stated goals of the U.S. Forest

Service in requiring these bypassed flows, remove the federal government from the

role of ‘‘Big Brother,’’ and satisfy state and federal law, thereby saving countless dollars of public and private funds currently earmarked for future litigation on this

subject.

Introduction:

I would like to state at the outset that I distinguish between the practice of imposing bypass flow conditions on permits for new water diversion or storage facilities and the more controversial practice of exacting new bypass flow conditions on

permit renewals or replacement easements. My comments are focused on the Forest

Service’s relatively recent practice of forcing water users to forfeit portions of their

historical water rights by sole virtue of needing to renew an existing Forest Service

permit.

In selected forests in Colorado, the Forest Service has attempted to impose bypass

flow permit conditions requiring municipal and agricultural water users to relinquish significant portions of their historical water supplies in order to provide water

for the secondary purposes of the National Forests. When it has succeeded in doing

so, the Forest Service’s actions have had the effect of reallocating water from public

and private senior water rights to relatively recently adopted federal purposes. Further, the Forest Service has done so in a manner that is wholly inconsistent with

the adjudication and administration of federal and non-federal water rights in ColoVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
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29 43 U.S.C. §§ 946–949.

rado. As such, the Forest Service’s bypass flow practice constitutes an illegal federal

instream flow program within the State of Colorado and one which cannot even be

legally administered in the state. Such a federal water grab causes significant

losses. When water users are forced to forfeit a portion of their historical water supply, their initial investment in these historical water supplies is lost and the replacement supplies, if available at all, are significantly more expensive to develop

and will, undoubtedly, result in additional environmental impacts.

The imposition of bypass flow conditions on water-related permits also fails to

achieve the Forest Service’s stated goal for the bypassed water. A bypass requirement on a special use permit, easement, or right-of-way does not create a legal

water right in Colorado or any other Western state, to my knowledge. Consequently,

water bypassed is simply available for diversion by the next downstream junior

water right holder, who may not otherwise be entitled to such water depending on

stream volumes at the particular time. Let me offer one such example of a failed

bypass flow condition.

Overland Ditch and Reservoir Company:

The Overland Ditch and Reservoir Company is a small, mutual ditch and reservoir company in Western Colorado situated within the Gunnison National Forest.

The company was founded in 1893 and today serves 138 family farms and orchards.

In 1905, the Overland Company constructed and has since operated the Overland

Reservoir for the benefit of its agricultural share holders. The Overland Company

constructed its reservoir under an easement granted under an 1891 Act 29 intended

to guarantee ditch and reservoir companies access to their facilities across public

lands.

In 1985, the Overland Ditch and Reservoir Company applied to the Gunnison National Forest for a special use permit to conduct rehabilitation work on a portion

of the existing dam and outlet works. This maintenance activity was required in

order to comply with a Colorado State Engineer’s dam safety order. The Overland

Company did not intend to enlarge or change in any way the configuration or operation of its reservoir or collection system. The Gunnison National Forest issued a

new easement, but added a condition requiring that 2.0 cubic feet per second (cfs)

of water be bypassed year-round from the reservoir for the stated purpose of enhancing the fishery in Cow Creek. This bypassed water was required to be measured at an existing stream gauge two miles downstream. Because of this, the Overland had to bypass more than 2.0 cfs in order to account for evaporative losses. The

Overland Company initially appealed this new condition, but, faced with construction delays and attendant cost increases, the share holders had no choice but to accept the new easement with the 2 cfs bypass condition attached.

The year-round bypass of 2 cfs represented a 25% reduction of stored water in

dry years. For a share holder to secure a comparable 2 cfs flow of water from the

Overland Reservoir, they would have to own approximately 400 shares at $1000/

share, or $400,000, and pay a $4800/year operations and maintenance charge to the

mutual company. Further, that $400,000 investment and $4800 annual payment

would only provide 2 cfs of water on a seasonal basis for irrigation use, whereas

the Forest Service, by permitting fiat, secured a year-round flow of 2 cfs at no

charge.

Because the Forest Service does not hold any legally recognized or enforceable

right to this bypassed water, there is no way to protect it from subsequent diversion.

As a result, two junior water right owners, located downstream of the gauging station, routinely diverted those 2 cfs for their use. This diversion is allowed under Colorado law because the water was, as a result of the bypass condition, freely available in the stream. A similar bypass condition has never been imposed on the two

downstream, junior diverters presumably because there has been no federal nexus,

to date.

It is important to note that although the circumstances in the Overland Company’s case resulted in additional water in Cow Creek for at least a couple miles,

the particular facts of other bypass situations could result in bypassed water being

almost immediately diverted by downstream, junior water right owners.

White River National Forest: Resource Management Planning Process:

Of even greater concern, however, is the process to update the White River National Forest’s Land and Resource Management Plan. The White River Forest contains the headwaters of six rivers which flow into the Colorado River. Within the

White River National Forest, there are 31 reservoirs and more than 200 water diversions each with Forest Service permits. Many of these permits are coming up for

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30 Colorado Revised Statutes § 37–92–102 (3).

renewal in the near future. This Draft Plan positions each of these public and private property interests at risk of federal taking.

Although the local forest planning staff held periodic meetings with various interest groups for several years prior to the Draft Plan’s publication, the water language

calling for routine, autocratic use of permitting authorities to secure bypass flows

contained in the Draft Plan came as a complete surprise to everyone.

In the overarching Goals and Objectives section, the Draft Plan included the following:

Goal 1.10–Water Quantity:

‘‘Provide instream flows that support the achievement and maintenance in

perpetuity of those federal purposes for NFS lands (i.e., safe drinking water

and swimming, aquatic life and habitat, recreation and aesthetics, and the

natural conveyance of water and sediment) that depend on such flows.’’

Objective 1.10:

‘‘By the end of the plan period acquire instream flow water rights or establish instream flow protection measures in special-use authorizations which

protect 10% of all perennial streams.’’ (White River National Forest, USDA, Proposed Revised Land and Resource Management Plan; ‘‘Forest Plan,’’ August 1999. Page 1–5.)

This companion Goal and Objective garnered widespread outrage across Colorado.

The Objective’s call to ‘‘establish instream flow protection measures in special-use

authorizations’’ is offensive in its overt declaration of intent to extort water from

legal water right owners through the Forest Service’s special use authorization process. These statements in the Draft Forest Plan made clear the Forest Service’s intention to ignore both Colorado water law and Colorado’s exemplary instream flow

program.

Moreover, this Goal and Objective is simply unnecessary, since the State of Colorado has a state-administered program to protect its natural stream environments

through an instream flow water rights program. Under Colorado law, the Colorado

Water Conservation Board (CWCB) is vested with the exclusive authority to appropriate instream flow water rights to ‘‘protect the natural environment to a reasonable degree.’’ 30 The CWCB currently holds more than 1300 instream flow rights on

more than 8000 miles of Colorado streams and rivers. Each of these rights has been

adjudicated through Colorado’s water court system and, as a result, can be administered, in priority, by the State Engineer.

The River District noted with dismay that this offensive Goal and Objective represented a significant departure from the historical practice of the White River Forest in dealing with stream flow-related concerns. Previously, when the Aspen Ski

Company requested a modification of the state’s instream flow filings on Snowmass

Creek, the White River Forest rightly chose to stay out of the ensuing litigation,

which was ultimately resolved within Colorado’s water courts. When the White

River Forest desired aquatic and riparian protections for Dead Horse Creek, a tributary to the Colorado River in Glenwood Canyon, the White River Forest worked

with the Colorado Water Conservation Board to successfully adjudicate a state

instream flow right for the entire flow of the stream and preserved the natural lake

levels of Hanging Lake, a popular tourist attraction, as well. The White River Forest’s Draft Plan gave no indication of why the Forest Service chose to abandon its

historical and successful practice of partnering with appropriate state agencies to

accomplish its goals.

The White River Forest’s Draft Plan garnered more than 14,000 public responses,

including a comprehensive comment letter by Congressman McInnis constituting

nearly a complete rewrite of the plan. As a result of the many serious changes in

the historical management practices proposed in the Draft Plan, a final record of

decision and publication of the final plan have been delayed numerous times, leaving local forest officials without clear guidance or direction. However, these delays

and the overwhelming public response offer the Forest Service, and the White River

National Forest in particular, the opportunity to explicitly reject the offensive use

of bypass flow permit conditions and to commit to a more constructive and ultimately successful approach to protecting the aquatic resources which the Forest

Service suggests is the purpose behind these bypass flows.

Unless the U.S. Forest Service commits to respecting Western states’ individual

water rights adjudication systems to accomplish its Goals and Objectives, the states

cannot protect bypassed water from subsequent, or even immediate, downstream diversion. The only sure outcome of the Forest Service’s continuing its practice of exVerDate 11-MAY-2000 16:56 Jan 18, 2002 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 72514.TXT HRESOUR1 PsN: HRESOUR1
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31 43 U.S.C. § 666. 32 Colorado Revised Statutes § 37–92–102 (3).

acting bypass flow requirements is contentious, lengthy, and expensive litigation.

This is a result in no one’s interest.

Wolford Mountain Reservoir:

In contrast, when my employer, the Colorado River District, obtained permits for

its Wolford Mountain Reservoir on BLM lands in western Colorado, we secured

stream flows for Muddy Creek which are both protective of the environment and enforceable under state law. Our BLM permits required that we work cooperatively

with the BLM and the Colorado Water Conservation Board to establish and adjudicate instream flows downstream from our dam. As a result, the state filed on a

three-tiered, seasonally fluctuating flow, which better represents the natural

hydrograph than a single year-round bypass amount. Although the instream flow

right is a junior right to our storage diversions, we have voluntarily met the

instream flow targets every year, to date. This year, however, due to a relatively

light snow pack, we have agreed to the state’s recommendation for a slightly reduced flow target for the peak, runoff months which is more reflective of stream conditions in a dry year, but will, in fact, provide greater and more consistent flow to

Muddy Creek than if the dam were never built.

Recommendations:

Rather than asserting permitting authority to impose bypass flows which cannot

be legally administered, the Forest Service should avail itself to one of several wellestablished methods for federal agencies to secure enforceable water rights: 1) reserved rights, 2) appropriative rights, or 3) CWCB instream flow rights. Colorado

law, in companion with the federal McCarran Amendment,31 provides an adequate

and proven means for federal agencies to secure enforceable reserved or appropriative water rights pursuant to Colorado’s procedural laws. Federal agencies have

used and continue to use Colorado’s procedural water law processes to secure such

adjudications. Federal water rights adjudicated through Colorado’s substantive and

procedural processes are recognized and administered by Colorado’s water officials,

a condition not enjoyed by bypass flows secured through federal permitting mandates.

Therefore, the Forest Service must commit to obtaining water rights which would

be protectable under Colorado’s priority system. Fundamental fairness, federal respect for states’ sovereignty in water adjudication and administration, as well as a

genuine desire to achieve the goals that the Forest Service espouses regarding bypass flows, all argue for this more constructive approach. The Forest Service should

acquire interests in water that the CWCB can convert to instream flow rights pursuant to its exclusive statutory authority, or secure the CWCB’s agreement to appropriate and adjudicate such flows directly, as is also its exclusive authority. 32

Additionally, the U.S. Forest Service should fully explore alternatives other than

taking water from existing water users in order to accomplish its goals for a specific

stream reach. Often direct mitigation of stream deficiencies resulting from reduced

stream flows will accomplish the desired goals without placing existing water rights

at risk. Drop structures, stilling basins, and channel manipulation are just a few

examples of stream work that may be more effective than flow requirements.

Other related forest practices that influence stream flows should also be addressed. Declining timber harvests and decades of fire suppression have resulted in

dangerously over-mature and dense forests. In addition to creating the potential for

catastrophic fires and their associated water quality problems, these conditions increase evaporative losses, reducing total water yields from the forests. Proper vegetative management can increase year-round runoff, which would benefit both the

forest streams and downstream water users who rely on adequate flows arising from

the forests. Additionally, the Forest Service should fully explore partnering opportunities with existing permit holders to cooperatively investigate reoperations alternatives which achieve the desired forest conditions without impacting water users’

historical yield. This was the ultimate resolution to the expensive and divisive legal

battles over permit renewals of decades-old water facilities in the Arapaho-Roosevelt

National Forests.

These approaches require a level of trust and a working dialogue which, frankly,

the practice of compelling bypass flows precludes. These approaches would create

an entirely different relationship with area water users. They could accomplish the

goals intended with the bypass conditions in a more efficacious manner and would

not have the legal and emotional encumbrances associated with bypass conditions.

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Conclusion:

Even those who construe a legal authority for imposing bypass flows conditions

must accept that the practice does not ensure that the purposes for which the bypass is imposed can be realized. Federal permit conditions to forego legally available

water do not confer a legal water right on the permitting agency. Bypass flow requirements only serve to reallocate water from a senior water user to a junior user

in abrogation of Western states’ substantive and procedural water law.

The U.S. Forest Service has not considered, or at least fails to acknowledge, that

the subsequent environmental impacts associated with replacing the water yield

that water users are forced to relinquish may overshadow the intended benefits of

the bypass flows. Water required to be bypassed as a result of a condition imposed

upon permit renewal must be replaced by the permittee. The Forest Service must

at least acknowledge that this can only be accomplished at considerable, often prohibitive, expense and that the environmental impacts associated with development

of replacement water supplies and associated delivery systems may be much greater

than even the intended benefit of the bypass flows.

There are constructive and proven alternatives to the failed practice bypass flows.

Since 1973, Colorado, through its Water Conservation Board, has established an extensive network of protected instream flows and natural lake levels, the vast majority of which are located on Forest Service lands. Six other arid, Western states have

similar programs. A commitment to work with this program and within Colorado’s

legal and administrative water rights system is the only way to achieve the Forest

Service’s own stated objective of ‘‘provid(ing) instream flows that support the

achievement and maintenance in perpetuity of those federal purposes for NFS lands

(i.e., safe drinking water and swimming, aquatic life and habitat, recreation and

aesthetics, and the natural conveyance of water and sediment) that depend on such

flows.’’ (White River National Forest, USDA, Proposed Revised Land and Resource

Management Plan; ‘‘Forest Plan,’’ August 1999. Page 1–5.)

Mr. MCINNIS. Thank you, Mr. Treese.

And I thank the entire panel for making the effort to appear

today. I can assure you that I am sure my colleagues, certainly myself, have a number questions and areas that I would like to explore with each one of you. But the time is not going to allow that

today.

What I intend to do is ask one question and then, as a courtesy,

grant the Ranking Member one question as well. I think we can

both, if we keep it to a couple of minutes, we can do it.

The voting that is going to be required now will take us past the

5 o’clock hour, so at the conclusion of our questions, we will

adjourn the Committee hearing.

Mr. Phillips, I have one question, very briefly. In regard to the

White River National Forest, as you heard Mr. Treese and myself

in earlier comments, I want to see, is it the intent of the Forest

Service to follow the policy of the Madigan letter in regard to the

White River National Forest plan.

You can go ahead and approach the microphone there.

Mr. PHILLIPS. That is difficult for me to answer right now. I

know that the plan is between the draft and the final stage, and

I know the comment that chief Bosworth made about collaboration,

he was serious about. And I will take that back to him.

Thank you very much, Mr. Phillips.

With that, I want to allow Mr. Inslee an opportunity to ask a

question.

Mr. Inslee?

Mr. INSLEE. I appreciate that opportunity.

Perhaps Mr. Treese is the best one to answer this question. I

have some degree of confusion—and maybe it is not me that is confused; maybe others—but I perceive the discussion I have heard

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today is about a water right. Under the assumption that a water

right also includes, by necessity, a right of access on other people’s

lands to get access to convey or store that water.

My understanding of a water right does not give the water right

holder, by itself, the right to go across another entity’s property for

conveyance purposes or for storage purposes. And my understanding of what is going on here is that because the water right

does not vest in an irrigator or a water right holder the right to

go on Federal property, they have to ask Uncle Sam for permission

to come on Uncle Sam’s property.

And my understanding of what is going on here is that Uncle

Sam in certain very limited circumstances is saying, you can come

on our property at the end of your permit process when you have

to re-up, when you have to ask Uncle Sam for permission. Uncle

Sam is striking a bargain, saying, in certain circumstances, we are

only going to allow you to come on our property if you take care

of fish a little bit.

Now, your constituency may not care about those fish. I can tell

you that my constituency does, who are the owners of this property

where these storage facilities are located.

To the extent you can, tell me what is wrong with my logic,

which is the belief that my constituents have the right to draw certain conditions on the use of their property for the maintenance of

storage facilities.

Mr. TREESE. Thank you.

In fact, in Colorado, with the exception of Federal lands, water

is in fact a dominant estate. So that, absent the need to cross Federal lands, you would, in fact, as a water right holder, have the

right of eminent domain to access the storage or conveyance of that

water.

However, on a water right that involves Federal lands, in fact,

you are correct. It does require the permission of the Federal Government.

I think what I would like to distinguish here is that these are

water rights that have been exercised for generally 50 years, the

term of a permit. And it is simply the permittee coming in and not

asking to do anything different.

They have already made the capital investment in those facilities. They are just trying to renew the permit. They are not asking

to increase their storage. They are not asking to change their diversion. They are not asking for access to construct or improve anything. They are simply asking to take care of this bureaucratic requirement that says you have to re-up your permit.

Mr. MCINNIS. Mr. Treese, I am going to have to adjourn the

Committee in order that we can make the vote. We have about 6

minutes remaining.

Mr. Treese, I would appreciate very much if you would send correspondence, responding to Mr. Inslee’s remarks—

Mr. TREESE. Be happy to.

Mr. MCINNIS. —to Mr. Inslee. I would be interested in the response. You can give us a little more detailed response.

Again, I thank all of you for making this effort to come out the

distance you did. And I am sorry about the time.

But that is life in Congress.

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The Committee is adjourned.

[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]

[The items listed below were submitted for the record:]

1. Letter from David Nickum, Colorado Trout Unlimited, et al.

2. Letter to Senator Hank Brown from Secretary of Agriculture

Edward Madigan

3. Letter from Dr. N. LeRoy Poff, Colorado State University,

May 18, 2001

The Honorable Scott McInnis, Chair

Subcommittee on Forests and Forest Health

1337 Longworth House Office Building

U.S. House of Representatives

Washington, D.C. 20515–6205

Re: May 22 Subcommittee hearing on instream flow protection on National Forests

Dear Representative McInnis:

The undersigned Colorado organizations believe that protection of streamflows on

National Forests is a critical issue for our state and the nation. We strongly support

Forest Service authority to require minimum ‘‘bypass flows’’ below water developments built on National Forests. We believe that operators of dams and diversions

on National Forests, as tenants on public lands, have a responsibility to the American people to ensure that their activities are conducted in a manner that protects

the health of our National Forests. Maintaining sufficient water in streams to support aquatic life and riparian vegetation is part of that responsibility. Therefore, we

disagree with the name of the May 22, 2001 hearing. The Forest Service is not engaged in the ‘‘illegal use of ’bypass flows’ on Forest Service lands;’’ rather the Forest

Service is using properly delegated authority to meet its express duty to preserve

aquatic resources on National Forests.

Adequate streamflows are essential to a wide range of public uses on National

Forests. Of course, fish and other aquatic life require water every day. Streamflow

is also vital to maintaining healthy riparian corridors, which are critical for wildlife.

Riparian and aquatic ecosystems make up about five percent of the area in the

West, but are used (for at least part of their life cycle) by 65 percent of the species.

Riparian areas also serve an important function as natural firebreaks. For example,

it was the North Fork of the South Platte River corridor that ultimately stopped

the northward advance of the disastrous 1996 Buffalo Creek fire in Colorado. Waterbased recreation is another major use of National Forests; fishing use of National

Forests alone contributes more than $8.5 billion to the economy each year and supports more than 95,000 jobs (based on 1996 data). Most fundamentally, rivers and

streams are the arteries for forest ecosystems and the water they carry is the lifeblood. Without adequate flows in streams, healthy forests cannot be maintained.

The problem Colorado faces is that its historic water rights system allows streams

to be dried up completely, even on protected public land. We do not object to the

use of National Forests for water development, as that is one of the many appropriate multiple uses for which these lands can be managed. However, the expectations for water development are no different than those for any other forest use such

as logging, grazing, or recreation: the use must be managed so as to ensure healthy,

sustainable forest ecosystems. When water developers seek the privilege of operating their ditches or reservoirs on lands belonging to the American people, we do

not believe it is too much to ask that some small amounts of water be allowed to

‘‘bypass’’ their projects so that streams and riparian zones can be sustained.

Each of the thousands of reservoirs and diversions on National Forest lands alters

natural flows and impacts fish and wildlife habitat both above and below the facility. Many of the permits for these facilities were first issued before anyone really

understood the environmental cost of dewatering native stream channels. When the

Forest Service now considers renewal of such permits, it has a legal duty to preserve

the forest’s flow-dependent resources. When possible, the Forest Service uses other

means to protect its water resources, including state-issued water rights and voluntary arrangements with permittees. We encourage the use of these collaborative

tools, but sometimes they are inadequate or unavailable. In these instances, the

Forest Service must be allowed to rely on its ability to require that some water remain instream as a condition of permit issuance.

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We ask that our letter be included with the Subcommittee hearing record. Thank

you for your consideration.

Sincerely,

David Nickum, Colorado Trout Unlimited

Dan Luecke, Environmental Defense

Carmi McLean, Colorado Clean Water

Jean C. Smith, Action Upper Arkansas and South Platte Project

Roz McClellan, Rocky Mountain Recreation Initiative

Bruce Driver, Land and Water Fund of the Rockies

Steve Glazer, High Country Citizens Alliance

Kirk Cunningham, Sierra Club, Rocky Mountain Chapter

Pam Eaton, The Wilderness Society

Elise Jones, Colorado Environmental Coalition

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