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[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

               ``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
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                                _______

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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                   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
                                 ------                                

               SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

                   SCOTT McINNIS, Colorado, Chairman
            JAY INSLEE, Washington, Ranking Democrat Member

John J. Duncan, Jr., Tennessee       Dale E. Kildee, Michigan
John E. Peterson, Pennsylvania,      Tom Udall, New Mexico
  Vice Chairman                      Mark Udall, Colorado
Mark E. Souder, Indiana              Rush D. Holt, New Jersey
Michael K. Simpson, Idaho            Anibal Acevedo-Vila, Puerto Rico
Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
                                 ------                                

                    SUBCOMMITTEE ON WATER AND POWER

                   KEN CALVERT, California, Chairman
            ADAM SMITH, Washington, Ranking Democrat Member

 Richard W. Pombo, California        George Miller, California
George Radanovich, California        Peter A. DeFazio, Oregon
Greg Walden, Oregon,                 Calvin M. Dooley, California
  Vice Chairman                      Grace F. Napolitano, California
Michael K. Simpson, Idaho            James P. McGovern, Massachusetts
J.D. Hayworth, Arizona               Hilda L. Solis, California
C.L. ``Butch'' Otter, Idaho          Brad Carson, Oklahoma
Tom Osborne, Nebraska
Jeff Flake, Arizona

                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   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

 
  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.
    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.
    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 Colorado 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.

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[GRAPHIC] [TIFF OMITTED] T2514.009

    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.
    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.
    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.
    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.

    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.
    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 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 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.
    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.
    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.
    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.
    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 authority 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 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.
    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 bypass 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.
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    \1\ The 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ While 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.
---------------------------------------------------------------------------
    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:
     LAchieving national forest purposes, whenever possible, 
through the use of alternative water management strategies, rather than 
through bypass flow requirements;
     LUsing state instream flow programs, where available, to 
acquire rights and provide water for national forest purposes; and
     LSeeking 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.
---------------------------------------------------------------------------
    \3\ The 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.
---------------------------------------------------------------------------

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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 
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 federal-state 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 measures'' 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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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 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:]

[GRAPHIC] [TIFF OMITTED] T2514.010

[GRAPHIC] [TIFF OMITTED] T2514.011

[GRAPHIC] [TIFF OMITTED] T2514.012

    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.
    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:
     LLegally sound,
     LNot the cause of any demonstrable hardship on the part of 
historic water users, and
     LA regulatory strategy that the agency has used sparingly 
in the past and must be allowed to continue to use in the future.
    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
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    \6\ The 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.
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    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.
---------------------------------------------------------------------------
    \7\ The 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.
---------------------------------------------------------------------------
    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 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:
     LThe Forest Service should use reserved water rights 
awarded the United States in McCarran Amendment proceedings to meet 
National Forest purposes.
     LNational Forest purposes should be achieved, where 
possible, through the use of alternative water management strategies.
     LThe 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.
     LThe Forest Service should seek voluntary arrangements 
with non-federal water rights holders where possible.
     LCongress should amend 16 U.S.C. Sec. 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.
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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.
---------------------------------------------------------------------------
    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, Sec. 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 acting pursuant to 
its general authority ``to regulate . . . occupancy and use'' in the 
National Forests under the Organic Act, 16 U.S.C. Sec. 551.
---------------------------------------------------------------------------
    \9\ See 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.)
    \10\ These statutes are the Organic Act of 1897 (Organic Act), 16 
U.S.C. Sec. 551 (1994); the Multiple-Use and Sustained-Yield Act of 
1960 (MUSY), 16 U.S.C. Sec. Sec. 528-31 (1994); the National Forest 
Management Act (NFMA), 16 U.S.C. Sec. Sec. 1600-14 (1994); and the 
Federal Land Policy and Management Act (FLPMA) 43 U.S.C. 
Sec. Sec. 1701-84 (1994).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \11\ See 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \13\ 16 U.S.C. Sec. 1765 (1994).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ 43 U.S.C. Sec. 666(a)(1) (1994).
---------------------------------------------------------------------------
    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 
Sec. 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 Sec. 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
---------------------------------------------------------------------------
    \15\ See, 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.
    \16\ See, 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. Sec. 1765.
---------------------------------------------------------------------------
    The Task Force majority simply ignored existing case law to reach 
its conclusion regarding Sec. 701(g). The United States Court of 
Appeals for the Ninth Circuit concluded that Congress intended the 
savings provision of Sec. 701(g) ``to mean that no federal water rights 
were reserved when Congress passed [the Act]. 18 Language 
similar to that of Sec. 701g, common in federal statutes authorizing 
regulatory programs, has never been construed to preclude any and all 
impacts on water rights. 19 As long as bypass flow 
conditions are prompted by legitimate FLPMA purposes, any incidental 
effect on water rights is permissible.
---------------------------------------------------------------------------
    \18\ Sierra Club v. Watt, 659 F.2d 203, 206 (9th Cir. 1981).
    \19\ See 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. 
1251(g)).
---------------------------------------------------------------------------
    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 state-granted 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
---------------------------------------------------------------------------
    \20\ See, 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).
    \22\ Sierra 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).
    \23\ See, 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \24\ Whether 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.
---------------------------------------------------------------------------
    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 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 ``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.
    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 
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 quarter-mile 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 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 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 Arapaho-
Roosevelt 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.
    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.
    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 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.
---------------------------------------------------------------------------
    \25\ Minckley, 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.
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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 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
---------------------------------------------------------------------------
    \26\ Trout Unlimited v. Dept. of Agric., No. 96-WY-2686-WD (D. 
Colo. Filed June 5, 1995), Administrative Record (Longdraw) at 4483.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \27\ Memorandum 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.
---------------------------------------------------------------------------
    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.
     LObtain 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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
     LObtain 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.
     LExercise 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.
     LUse 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.
     LBuy/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.
     LDevelop 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.
     LCoordinate 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.
     LUse 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.)
     LSet 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'' 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.
     LUse 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 
discretionary 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 at-risk 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 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 water-related 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 Colorado. 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.
---------------------------------------------------------------------------
    \29\ 43 U.S.C. Sec. Sec. 946-949.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \30\ Colorado Revised Statutes Sec. 37-92-102 (3).
---------------------------------------------------------------------------
    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 exacting 
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 well-established 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.
---------------------------------------------------------------------------
    \31\ 43 U.S.C. Sec. 666.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \32\ Colorado Revised Statutes Sec. 37-92-102 (3).
---------------------------------------------------------------------------
    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.

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 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.
    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. Water-based 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.
    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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