By-pass Flows on National Forest Lands

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Follow-up Statements of Kent Holsinger Regarding Bypass Flows Before the Subcommittees on Forests and Forest Health and Water and Power U.S. House of Representatives May 22, 2001 Answers to Chairman McInnis' Questions: 1. There is no question that the JOP does not bypass water to La Poudre Pass Creek (several miles),but, instead provides additional flows to the mainstem of the Cache la Poudre River, which provides benefits along the mainstem for 43 miles. This "trade off' is desirable for a number of reasons: (1)bypass flows from Long Draw Reservoir would result in the loss of a substantial portion of the reservoir's yield, particularly its dry year yield; (2) winter releases would raise dam safety concerns; and(3) it is questionable whether bypass flows would actually improve flow conditions in La Poudre Pass Creek or would just freeze at the foot of the dam. In fact, studies show the JOP provides better trout habitat than bypass flows could. 2. No. Colorado water law requires the Colorado Water Conservation Board (CWCB) to hold new instream flow rights. However, the CWCB is willing to enter into agreements with the Forest Service to ensure that the CWCB enforces those rights. If the Forest Service acquires an existing water right(one administered in the priority system)then the CWCB could work out a contractual arrangement with the Forest Service whereby instream flows are protected consistent with state law and the federal government retains an interest (even title) to the water right. 3. While it is true that the CWCB's statutory mandate is different from that of the Forest Service, the State program has proven flexible enough to provide sufficient flows in the few cases in which the Forest Service either worked with the CWCB (Hanging Lake/Dead Horse Creek) or filed it own claim. In the latter case, the CWCB filed on the same stream and the Forest Service subsequently withdrew its application. The short answer is that unless the Forest Service tries to work through the State program,we don't know. However, the CWCB has shown that it is willing to make an effort to meet the Forest Service's requests. 4. Probably the main advantage of the State program is that the CWCB staff understands Colorado water law and routinely protects its water rights by filing statements of opposition to water right applications that could injure its rights and participating in the adjudication proceedings for those applications. It is questionable whether the Forest Service could do as well. Answers to Minority Staff Questions: 1. No. No court has decided the issue either way; TU v. Dept. of Ag. is a case of first impression. The bypass flow task force created by Congress did conclude that requiring bypass flows from existing facilities is illegal.