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I <br /> Statement of Kent Holsinger <br /> Assistant Director 1 <br /> Colorado Department of Natural Resources <br /> BYPASSING CONGRESS: THE ILLEGAL USE OF"BYPASS FLOWS" ON <br /> NATIONAL FOREST LANDS <br /> United States House of Representatives <br /> Subcommittee on Forests and Forest Health <br /> Subcommittee on Water and Power <br /> May 22, 2000 <br /> Introduction <br /> We greatly appreciate Chairman McInnis' interest and work on this issue. We thank <br /> Chairmen McInnis and Calvert for holding this hearing on such an important matter. We <br /> also thank Congressman Schaffer and Senator Allard for circulating and sending letters to <br /> Secretary Veneman and Attorney General Ashcroft respectively. <br /> Everyone's heard the old adage, "Whiskey's for drinkin' and water's for fightin'." With <br /> all due respect to Mark Twain, at least in this case,we beg to differ. How do we surpass <br /> such a contentious issue as bypass flows--the topic of this hearing? <br /> The State of Colorado envisions a new era of cooperation: one of comity with the federal <br /> government that results in real environmental benefits. For this to happen,the U.S. <br /> Forest Service must abandon the ill-founded, and we believe, illegal, practice of imposing <br /> bypass flows on water providers. Instead, it must work collectively with the states and <br /> water providers to protect resource values. Specifically, the Forest Service must work <br /> within the bounds of state water laws and pursue any federal claims to water in state <br /> adjudications. <br /> Federal claims for water have always been contentious and have rarely been successful. <br /> With Congress' enactment of the McCarran Amendment in 1952, the United States <br /> waived its sovereign immunity and consented to the jurisdiction of state water <br /> adjudications. In 1993, the U.S. Supreme Court, in U.S. v. Idaho, affirmed that the <br /> McCarran Amendment subjected federal claims to water rights to state adjudications and <br /> clarified that federal claims were subject to state laws. <br /> The Forest Service must attain the secondary purposes of the National Forests by <br /> obtaining and exercising water rights in accordance with state and federal laws. Bypass <br /> flow claims contravene one of the primary purposes for which the forest lands were <br /> reserved—to secure favorable water flows for water providers. Moreover,bypass flows <br /> simply don't work. They fail to provide environmental protection and instead create an <br /> atmosphere of hostility, litigation and distrust. <br />