Bypass Flows interfere with the exercise of water rights. Throughout the Colorado bypass flow controversy, the Forest Service asserted that the imposition of bypass flows did not interfere with the exercise of a water right. The argument that a bypass flow requirement is not an interference with the exercise of a water right because title to the water right remains with the permittee draws a distinction without a difference. Having title to a water right is meaningless if the owner is not allowed to exercise the right in accordance with its terms, i.e. time and place of diversion or storage, quantity, and priority. The argument that a bypass flow requirement is not an interference with the exercise of a water right because the water can be diverted at a later time or in a different place also ignores basic water law and the reality of geography.
Several examples illustrate the injurious effects of bypass flows on water rights.
First, if a federal agency imposes bypass flows on the operation of a ditch or direct-flow water delivery structure, the water remains undiverted in the stream and flows past that structure in order to fulfill the Forest Service's desired use. Because the water is bypassed at the point of diversion and continues downstream, the ditch owner will not be able to recover the bypassed water, reconvey it upstream to the diversion point, and place it to its decreed, historical beneficial use. Contrary to Forest Service assertions, the bypassed water, once converted to the agency's preferred use, is often lost forever and no longer available for beneficial use by its owner. Second, bypass flows imposed upon reservoirs have the effect of converting water storage rights to direct-flow rights. Most agricultural and municipal water users in the West need storage water to meet demands during times of drought.