Organizing for Endangered and Threatened Species Habitat Draft

Home Browse Search

staff, Director Reilly had initiated a final review process that had taken 19 months. In what was a shocking move for a Republican administration that had been solicitous of the Western perspectives, in March, 1989, Director Reilly vetoed Two Forks on the grounds that the project would violate section 404c of the C'lean Water Act. By pass Flows As the FERC licensing process at Kingsley Dam and Lake McConaughy dragged on, as the struggle over Two Forks played. out, long standing water projects far upstream in Colorado headwaters came up for permit renewals from the Forest Service. The facilities needing federal permits included reservoirs and pipelines for Fort Collins, Greeley, and a local mutual irrigation company, Water Supply and Storage. The reservoirs were located in the upper reaches of the Poudre river, the largest tributary to the South Pla.tte. Conflict over water as between federal environmental agendas and state users had been simmering for decades all over the west. National forest lands in Colorado, within which reservoirs and conveyance facilities were nested, had been aside by presidential proclamation, and Congress had authorized the desigriation primarily to stop unregulated timber cutting that had threatened water supplies. Howevf,r, Congress did not clearly address whether the government had authority ever the water genera,ted in, and flowing through, federal forests. As of the early 1960s, the Forest Service had no clear instream flow policy and had never claimed water rights for instream purposes. By the 1970s, vvhen Congress passed its spate of environmental legislation specifically directing the Forest Service to protect the environment, the question of whether the Forest Service acceptance of state vvater adjudications came to be sharply posed. When permits for these Colorado mountain reservoirs on the Roosevelt-Arapaho National Forest came up for scheduled Forest Service renewal c?n their normal 20 year cycle, the new legal context triggered review and analysis under the Endangered Species Act. Two issues drove the Forest Service's consideration of its water policy. 1) concerns about winter storage drying up streams b elow high mountain reservoirs and the threat that constituted for fish and wildlife habitat; and 2) and the loss of listed species habitat along the central Platte in Nebraska brought to its attention by the FWS in consultations required by the ESA. By the late 1980's and early 1990's, the Forest Service began discussing the requirements for permit renewal for facilities on the Arapaho/Roose;velt National Forest. Water users were told that they must agree to open their gates to supply minimum winter stream flows to protect aquatic habitats. (Neuman and Blumm 1999). The Federal government can obtain water for federal use by either of two methods: 1) for a federal reservation, the Federal reserved rights doctrine has been invoked; 2) uses for other (non- federal) purposes, the federal government must proceed in accordance with the law of the state within which the water is located. Federal agency attempts to employ its reserved water rights doctrine has been seen by most in western water communities as an attempt to bypass state sovereignty over water resources seriously threatening orderly and socially just administration of water use under state law. In the la.te 19`h century, local agricultural and municipal water interests 33