Organizing for Endangered and Threatened Species Habitat Draft

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recovery. In the end, the outcorne was perplexing to the Forest Service, and a relief to the Poudre river water users. Most Forest Service claims were denied. Federal reserved rights doctrine had been held at bay, at least for the mament. The Colorado Division 1 Court found that claims made by the Forest Service were not necessary to fulfill the primary purpose of National Forests and in fact worked against fulfilling those purposes. The court questiorned Forest Service methods and found that many streams chosen for illustration and quantific;ation already contained diversions, showing only "subtle" differences above and below diversions. The court determined that those streams exhibited none of the undesirable characteristics tlaat the Forest Service claimed could occur, and thus that long standing diversions did not constihrte a threat to the integrity of the channels (Gillilan and Brown 1997). The Colorado court found that the water related purposes of National Forests were to enhance the capacity of downstrearn users to use water for irrigation and domestic purposes. The court also found that instream clairns of the Forest Service would harm opportunity to store water to meet late season irrigation and niunicipal needs. The Forest Service appealed the rulings to the Colorado Supreme Court where that body ruled that the federal government should be allowed an opportunity to prove the necessity of instream flows in securing favorable conditions for forest purposes, but that such necessity had not been established in this case. The Colorado Supreme Court also ruled that the original intent of the Organic Act was to encourage development of the West by enhancing the quantity of water available to appropriators, not to reduce consumption of water by protecting instream flows (Gillilan and Brown 1997). Water users, not wanting re;peated costly and risky court trials over reserved rights issues, voiced their concerns to Colorado's congressional delegation about Forest Service and FWS aggressive use of the reserved rights rationale. Colorado political leaders, in turn, pushed the point hard in meetings with Department of Interior and USDA officials. An amendment to the Farm Bill, which was signed into law in April 1996, established a Water Rights Task Force to explore the by-pass flow issue. The Act also provided for an18 month moratorium on any Forest Service decision to impair a decreed right through by-pass flow requirement as a condition of a permit. The Task Force was formed and concluded its study deeply divided on the issue, 4 to 3. The By- Pass Flow Task Force Report, in its majority position, is a strong, one-sided argument against by- pass flows based on the assertion fhat the Forest Service has no authority to impose flow requirements, while the minority contended that such means are within Forest Service powers (Neuman and Blumm 1999). Water users had, narrowly, obtained the support that they wanted but they saw the slim margins judicial and political--tha.t had protected them from serious loss of water yield from their mountain storage projects. Wise heads would counsel caution and the importance of addressing environmental issues within state i:rameworks. Federal agencies that could find satisfaction within state law and practices just might be agencies that could be coaxed away from repeated attacks under federal reserved rights doctrine. In the aftermath of the Division 1 court battle and subsequent appeal to the Colorado Supreme court, Poudre river watec- users and the Forest Service were able to negotiate with some civility. It was clear to all parties that the negotiations on the Poudre had consumed time, money and personnel. The consideration of only five permits, out of more than 100 permits on the 37