By-pass Flows on National Forest Lands

Home Browse Search

History Many of Colorado's water supply facilities are located on, or transport water across, federal lands. So our relationship with the Forest Service is vitally important. While we understand, and concur with, the Forest Service's desire to protect resource goals, the Supreme Court and the Congress have clearly established that federal claims on water are subject to state laws through a long series of carefully considered decisions and thoughtfully executed laws. The system thereby established protects well-established principles of federalism and property rights. We remain prepared to vigorously defend Colorado law against any Forest Service attempt to make an end-run around Congress and the rights of Coloradans. The Forest Service started imposing bypass flows in Colorado in the early 1990s as a condition of permit renewals. As Chairman McInnis is well aware,bypass flows are among several contested issues in the controversial White River National Forest Plan in Colorado. Several other Western States face these issues as well. In fact, seven Western states recently filed briefs in a pending lawsuit against the position that the Forest Service has the authority to impose bypass flows. In 1992, then Secretary of Agriculture Madigan stated the Forest Service would not wrest water from permit holders through bypass flows. The Clinton Administration revoked this policy in 1994. Since then, the Forest Service has publicly stated its intent to use bypass flows more frequently. For example, in the November, 2000 "Water for the National Forests and Grasslands: Instream Flow Strategies for the 21st Century" by the USDA Forest Service, the agency advocates imposing bypass flows as conditions to Ditch Bill easements' (an issue of immense scope and consequence for thousands of farmers and ranchers) and even condemnation of water rights. That document goes on to lament that federal claims on water, "are always heard in often hostile state courts before judges without juries that never understand them" and that flexing their perceived regulatory power is, "a key component of the policy shift the FS needs to undertake if we are really going to protect and restore instream flow values." (pp.5 and 11 respectively). We strongly disagree. And so did a congressional task force convened in 1997. Congress convened a Water Rights Task Force in response to the bypass flow controversy. The Task Force concluded there was no legal authority for the Forest Service to impose bypass flows. 1 The Ditch Bill,a 1986 amendment to of the Federal Land Policy Management Act(FLPMA)(43 U.S.C. Section 1761(c)),provided agricultural water users with the option of accepting a permanent easement from the Forest Service for certain ditches,reservoirs or other facilities constructed on Forest Lands. It applied to all structures in existence prior to the October 21, 1976 effective date of the Federal Land Policy Management Act,(FLPMA)and was enacted to give agricultural water users the opportunity to avoid a Forest Service process that was increasingly seeking to attach on them burdensome terms,conditions and fees. Unfortunately,this and other controversies related to Ditch Bill easements continue to this day. 2