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The Forest Service Has No Legal Authority to Impose Bypass Flows <br /> "Absent an explicit grant of authority by Congress," said the Task Force, there is no such <br /> regulatory power to impose bypass flows on water providers.2 The Forest Service lacks <br /> statutory authority to impose bypass flows through forest plans. Under NFMA, land use <br /> authorizations are subject to "valid existing rights." 16 U.S.C. Section 1604(I) (1988). <br /> Moreover, Congress explicitly protected the existing use, "allocation and state <br /> jurisdiction over water" as well as all valid existing rights when it enacted FLPMA. See <br /> generally 43 U.S.C. Sections 1701-1784 (1988). Specifically, subsections 701(g) and(h) <br /> of Title VII of FLPMA are clear on this proposition. <br /> According to the Task Force, Congress did not intend FLPMA to operate in contradiction <br /> to existing water rights,water development,water laws or compacts. In fact Congress <br /> preserved water rights language in the 1866 Mining Act while repealing right-of-way <br /> provisions under that same Act. Neither FLPMA nor NFMA justify anything but <br /> deference to state water laws. <br /> Not all members of the Task Force agreed with these conclusions. However, they all <br /> agreed upon the following recommendations: <br /> • Achieving national forest purposes,whenever possible, through the use of <br /> alternative water management strategies, rather than through bypass flow <br /> requirements; <br /> • Using state instream flow programs, where available, to acquire rights and <br /> provide water for national forest purposes; and <br /> • Seeking voluntary agreements with non-federal water rights holders. <br /> Alternatives to Bypass Flows <br /> Alternative management strategies such as: federally funded mitigation; collaborative <br /> measures; land exchanges; and non-flow alternatives, including structural measures <br /> should be pursued. These could more effectively protect resources than litigation or hotly <br /> contested bypass flows. Also, operational changes to water supply facilities can <br /> sometimes provide environmental benefits without interfering with water rights. <br /> Incentives to water providers could help propel the federal government into a new era of <br /> successful environmental protection. For example, the Task Force recognized Congress <br /> could amend 16 U.S.C. Section 499 and other applicable laws to ensure permit revenues <br /> are deposited into accounts, without additional authorization or appropriation, to create <br /> incentives in the national forests from which revenues are derived. Another opportunity <br /> for funding incentives for better environmental protection may stem from the Land and <br /> 2 While,the State of Colorado strongly believes there is no legal authority for bypass flows,we recognize <br /> the Forest Service may require non-flow related permit conditions such as: dam safety requirements;best <br /> management practices;conditions for recreational purposes;or conditions for stocking or management of <br /> fish and wildlife. <br /> 3 <br />