Organizing for Endangered and Threatened Species Habitat Draft

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encroachment by vegetation, and decreased threat of flooding. This rationale boiled down to the need for instream flows far "channel maintenance" (Neuman and Blumm 1999). Not long after the Gila case, the Forest Service tried again to make claims on water under the reserved rights doctrine, this time in Colorado where it held land in strategic locations in the watershed. It claimed water for a variety of purposes, using the channel maintenance rationale. Based on hydrological principles that determine the amount of stream flow needed to maintain stream channels in conditions "favorable" to water flows, this approach was a direct appeal to the purposes of the Organic Act. The time seemed right for a full consideration of U.S. Federal reserve rights doctrine. ? The agency acted by trying to require "by-pass" flows-i.e. bypassing user impoundments-- • as a condition for renewal of special use permits issued to water users with holdings of + infrastructure along the Cache la Poudre River within the Arapaho-Roosevelt National Forest. Immediately, the proposed by-pass flows became a jurisdictional issue: did the federal ? government have authority to override Colorado law, or did water user rights under Colorado state ? appropriation doctrine have priority? Beginning in early 1991, the case unfolded in Colorado Division 1 Water Court, the judicial and administrative unit that encompasses the South Platte and its tributaries. During a costly year-long trial, the U.S. Justice Department, the Colorado Attorney General's Office, and Northern Colorado Water Conservancy District argued the complex legal and factual issues of federal claims of supremacy versus those of state and local water administration (Tyler 1992). As a consequence of consultation between the Forest Service and FWS, a biological assessment of the water users' facilities on the Arapahoe/Roosevelt Forest stated that the water facilities negatively affected endangered species habitat in Central Nebraska. Two separate environmental problems, then, had to be addressed: 1. negative impacts of reservoirs on aquatic habitat immediately below facilities on the Poudre; 2. negative impacts to endangered and threatened species downstream in Nebraska. The Forest Service v. Colorado on the South Platte was high drama that drew the interest of water users and environmentalists around the country. The trial was a high stakes affair complete with armies of expert witnesses and considerable press coverage. Marked by much legal maneuvering and technical discussion, it became an extensive seminar on principles of fluvial geomorphology and associated sciences, complete with field trips (Gordon 1995). Permit holders had feared a loss of storage water and the cost of retro-fitting dams to allow small quantities of winter by-pass flows for instream use. Advocates for the state water user position argued that the Federal position on water flow needs in critical habitat was an inappropriate preemption of state water law. This Federal action also interfered with water allocation under state compacts. Also, Congress, in passing the ESA, had never intended to interfere with state rights and obligations in the manner advanced by the Forest Service. Federal advocates, in turn, argued that ESA had mandated the use of "all methods and procedures which are necessary" to bring any threatened or endangered species to the point of 36