BOARD00355

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

MA~-04-2003 TUE 10:00 AM TROUT WITWER & FREEMAN

FAX NO, 3038324465

rights 10 direct.flow rights. The 'owner of this type offacility usually releases previously stored
w~ler from an upstream reservoir to satisfy a downstream demand (e.g., at an irrigation ditch
headgate or municipal treatment iplant int&ke). Most agricultural and municipal water users in the
WeSI need storage water to meei demanqs during times of drought. Many of these water users
also need storage water to meet pemands during annual periods of low flows (typically in late
summer or in the winter.) Like qeposits to a saving account, this water is saved for use in times
of shortage, If the water is not ~ored when it is available, it will nqt be there for use when water
is needed but is either legally un~vallable (because all of the water in the stream belongs to senior
appropriators) or physically una~ailable (because ofaetual water shortage). Bypass flow
requirements defeat the purpose :of water storage. In addition. the bypassed flows which are not
diven:ed by downstream water uFers and actually arrive at the downstream int&ke point often do
so at times when there is no de.l'l1and or when. other water rigllts (e.g., decreed direct-flow water
rights) fully satisfy the existina demand. In these circumstances, the bypassed water has no value
to the entity that owns it.

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Finally, as is demonstrat~d by the Poudre River Case Study and the lmers to the Task
Force from the Cinr ofThamto~ and the Water Supply &. Storage Company, the bypass flow
requirements that the Forest Service initially auempted 10 impose would have taken over 50% of
the water supply provided from the fllA:i1itieut issue in dty-years.~' This is not de minimis or
inconsequential. In addition, ba,ed on the fa.ct th"l tile demanc1 for bypass flows was based on
attaining goals and standards dejlned in the forest Plan, and because these plans ue periodically
amended and revised, Forest Sei'vice employees asselted that they might raise these bypass flow .
requirement in the future. .

A Forest Setvice employee recently made a teUing admission regarding the impact of
bypass flows on a water right in! Colorado when he asserted that other water rights developed by
the reservoir owner could repla~e the resulting loss of yield: "The increased capacity reali~ed by .
the perfection of {your addition~ waier rights} will . . , increase your ability to meet the bypass
amounts required." l.I While tll~ appropriation of junior water rights may replace water lost to
bypass !lows in some circumstailces, this alternative is clearly not available when other water
rights have appropriated all of the remainin$llows, More importantly, this statement admits that
bypass flows do impact water orts.

Bypass Flow Conditio,s are inconsistent with State Water Administration Systems,
Bypass !low conditions also threaten the al1ilinr oca Slate to administer water rights. The
administration of water rights .ill typically a function performed by State officials. These State
officials enforce water rights priOrities established under state and federal law. Unleas there is

12 Se, Anaohlll."t 3 of !he Poudtel<iver Cw SI\llly, whioh is a Il".ph demons....tins !he impaot of a proposed
bypass flow re'luiromem on a Slor.s. ~eservoir,
!

l.3 s", Lemr /rom Ray L. KinSS~ll!. Paonia Distriot Ranser. to Pelor Kasper. Overlllllcl DitGb and Reservoir
Company (May>, 1997) (anaohed 10 I1rio \Vilkins<>n !.eller to rnsk Force, A~81'$l6, 1997).

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