BOARD00355

• Board Meeting Date: 3/24/2003
• Description: Forest Service Bypass Flows in Special Use Permits
• Board Meetings - Doc Type: Memo

MAR-04-2003 TUE 09:58 AM TROUT WITWER & FREEMAN

FAX NO, 3038324465

p, 14

.

authorizations were renewed bas~lI on a variety oftenns and conllitions. The Cache la Poudre
River Case Study, which is included in Part VtII oftrus Report, provides a more detailed
lIiscussion ofthe basis for the decision to renew some of the land use authorizations without the
imposition of bypass flow req\jir~menlS, The forest Service also amended the Forest Plan so that
it was consistent with the decisions made for these land use authorizations. These decisions were
then Challenged In federal COllrt by envirorunentai groups. and the case is now pending in the
United States Federal District Cqun for Colorado. However, at the request of the Department of
Justice and Plaintiff, Trout Unliqlited, the litisation haa been stayed pending the completion of the
Report of this task Force. '

Bypass 1I'IDWS . A DefinItion. Atiy an,a1ysis of this issue must include a definition of what
constitutes a "bypass flow" requirement. A simple definition of a "bypass flow" condition is that
the tenn refers to a requirement that water wllich would otherwise be divened in priority instead
be "bypasaed" from the diversion and left in the stream. For the purposes of this analysis, a
"bypass flow" requirement has tile follOwing elements; I) it is imposed by the Forest Service, 2)
on the operation of a water supply or hydropc;.wer production facility, 3) for the purpose of or
with an intent to protect or estabiish stream a,ows or water levels in the National Forests, 4) in
order to achieve National Forest "purposes" other than those for which a federal reserved water
right has been obtained (comm011ly referred tp as "secondary" forest purposes), or to achieve
purposes for which a federal r8SlWVed or oth~ water right was obtained, but in a manner which is .
not consistent with the exercise in priority orthal federal water right, and 5) results in a loss of the .
water yield from the affected facijity wllich would otherwise result from the operation of that
facility in accordance with water lights established under Stale or federal law, or a material
increase in the cost of that yiDld, or otherwise interferes with the use oftbe water supply in
accordanc;e with the terms and cQndltions of the Water rights associated with the water supply.

Accordingly, conditions i\nposed on ~he operation of affected facilities that are intended to
protect public health and safety, (~am safety ~equirements or restrictions on recreational use), or
which are intended to protect forFSI resour~s by means other than the re81l1ation of water use or
flow levels (regulation of stockin~ of non.na~ve species, reasonable access restrictions, regulation
of commercial activities such as l!Iarinas, !heirequirement ofBMP's for construction and
mwmenllJlce activities) do not CO/lsti1Ule a byPass flow requirement.

Bypau Flows interfere witb tbe eserelse of water rigbts. Throughout the Colorado
bypass flow controversy. the Forest Service :asserted that the imposition of bypass flows did not
interfere with the exercise oia water right. The Forest Service attempted to justify this position
by asserting tbat I) because title fa the watet right remained in non-federal ownership, there was
no interference with the water ri~t, 2) there was no interference with water rights because the
Forest Service was not "seeking" or "claiming" a water right, 3) water users could limply take the
water at a different time and placll, and 4) aqy impact on water rights was ik minimis or
inconsequential. .

The argument that a byp~ss flow requirement is not an interference with the exercise of a

: III. 2

.