By-pass Flows on National Forest Lands

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The Forest Service threatened bypass flows on a special use permit required for a rebuilt pipeline needed by the city. Boulder pointed to its agreement with the Colorado Water Conservation Board(CWCB), the only entity that can hold instream flows under Colorado law, for instream flow protection consistent with the Forest Service standard. This innovative agreement combines new instream flow filings by the CWCB with some of Boulder's historic water rights to ensure adequate resources for aquatic habitat. The result is a respectable trout fishery and riparian habitat in the midst of an urban environment. While the Forest Service was at first unwilling to accept this arrangement, after extensive negotiations, they agreed the City's contract with the CWCB suffices for national forest purposes so long as it remains in effect and so long as the CWCB upholds and protects those instream flows. Hanging Lake In 1996, Instream flow and natural lake protections for Hanging Lake and East, West and Main Dead Horse Creek resulted from cooperative efforts between the regional forester and the CWCB. While the CWCB's statute requires them to appropriate the "minimum amount necessary to preserve the environment to a reasonable degree,"the Board demonstrated great flexibility and obtained rights to all unappropriated flows in the basin to preserve the unique hydrologic and geologic environment including Bridal Veil Falls and Hanging Lake. Working together, the State of Colorado and the Forest Service protected a unique natural environment that provides outstanding recreation and aesthetic qualities that attract thousands of travelers from around the world. Examples in Other States There are success stories in other states as well. Arizona, Idaho and Montana have taken strides to work with the federal government rather than against it. But they are plagued by many of the same challenges we face in Colorado. In Arizona, a state process would guarantee consultation with the Forest Service. But the agency created a controversy where none needed exist by insisting it needed to "retain control." The USFS also sued in Idaho, claiming Idaho law is inadequate to protect federal interests in water uses on forest lands. By contrast, the Bureau of Land Management requested the Idaho Water Resources Board hold instream flow and storage rights on federal lands. No federal-state tension exists on those successful efforts. In 1993, the Montana Compact Commission and the Forest Service entered into a Memorandum of Understanding(MOU) on federal claims to water. The State and the Forest Service have been working out these issues,but any threat of bypass flows could potentially hinder their good work. Misplaced Criticism of State and Voluntary Efforts The minority of the Task Force mentioned the agency has "usually attempted"to respect the equities and that they have"tried"to accommodate facilities. But is it good enough to "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 7