By-pass Flows on National Forest Lands

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"attempt" or "try" to respect the will of Congress and the laws of the land? Even detractors agree state and collaborative measures to protect the environment should be "vigorously pursued"by the Forest Service. The minority contention that the agency needs bypass flows to secure, "voluntary protective measures" on forest lands is nothing less than extortion,which is defined as "the act or practice of wresting anything from a person by force, by threats, or by any undue exercise of power; undue exaction; overcharge." Some detractors argue state instream flow programs often do not provide sufficient flows. However, the State of Colorado's instream flow methodology is more than adequate to address instream flow needs. We simply insist that recommendations are based upon sound science and recognize existing water rights and interstate compacts. It is critical that the Forest Service base their recommendations on sound science and a specific assessment of species or habitat needs. Even then, we should work with the Forest Service to monitor and accurately evaluate the actual impacts of such acquisitions. While some argue states must make substantial changes in their programs and laws before the Forest Service quits imposing bypass flows, the priority system often protects instream resources. As to the assertion that state law might allow the dam owner to dry up the stream, that is simply not the case in Colorado. Senior demands pull water past upstream junior diversions and assure healthy streams in the process.. Interstate compacts do the same on a much larger scale. A full 75% of the Colorado River must pass through Colorado to fulfill compact requirements to other Colorado River Basin States. Forty percent of the Arkansas River must do the same. In fact, of all rivers in this headwaters state, only portions of warm water habitat on the South Platte are occasionally dewatered in dry years. Some rivers and several tributaries historically dried up, including the South Platte. Since 1900, South Platte River flows, as many in the state, have increased steadily due to irrigation and more efficient water use through storage. According to the Colorado Division of Wildlife, water storage has greatly increased the sustainable trout fisheries in Colorado. For example, Gold Medal trout water exists below several major reservoirs and provides better trout habitat,particularly in dry years, than existed prior to development. The Endangered Species Act also affects many of the rivers in the State of Colorado and ensures that water development proceed in such a way that it does not jeopardize the continued existence of the species. Moreover, instream flows for cutthroat trout streams (the greenback cutthroat trout is listed as a threatened species and the Colorado River cutthroat trout has been petitioned for listing) are among the highest priorities in the 2002 Work Plan for the CWCB. The greenback cutthroat trout has done exceptionally well in recent years in streams administered by the prior appropriations doctrine in Colorado. In this case, the U.S. Fish and Wildlife Service delegated incidental take authority under Section 9 of the Endangered Species Act(ESA) to the Colorado Division of Wildlife for the greenback cutthroat trout, a 8