BOARD00355

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

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""" u~-"uu,) I Ur. IU i Uq fil'l TliUUT WITWER & FREEMAN

FAX NO. 3038324465

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D. CASE STUDY, BOULDER CREEK, COLORADO. PROTECTION OF
INSTREAM FLOWS UNDER STAT~ LAW

Boulder Creek arises as North, Middle and South Boulder Creeks near the
Continental Divide in the mountains west of the City of Boulder. The creek flows into
St. Vrain Creek, and finally the South PI,ne River, east of the city. Arapaho Glacier and
the Silver Lake Watershed, owned by th~ City of Boulder, feed North Boulder Creek and
supply about 40% of the water used by t~e city's 125,000 water customers via diversion
points on North Boulder Creek. Another 40% of the city's water supply is diverted from
Middle Boulder Creek at Barker Reserv(llr. South Boulder Creek runs a gauntlet of
headgates east of the city to provide WIller for the cities of Denver, Louisville and
Lafayette and for numerous agriculwr1ll4itches. Historically, diversions on all three
branches have dried up the creeks at various locations during periods onow
flow .- mostly in late summer and wintet-

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Part of the city's water developrj1ent in the North Boulder Creek drainage is the
Lakewood Pipeline, about 30% ofwhicp runs across U.S. Forest Service (USFS) lands.
Concerns about maintaining adequate s~ream flows were raised in 1992 when the USFS
was conSidering a land use authoriutj~il for modification of the Lakewood Pipeline.
Under the Arapaho-Roosevelt Forest PIIII1, a standard calls for maintenance of aquatic
habitat at 40 percent of its potential. ~ part of the process, the USPS suggested adding a
bypass flow requirement in the autho~ion to address this standard.

The city objected in general to ~he USPS proposal to require a special use permit
for a rebuilt Lakewood Pipeline and in panicular 10 the USPS's declared inte'!tion of
including a bypass flow requirement as !part of that permit. The city claims rights to \Vater
from the watershed and the right to delIver that water to the city based on Congressional
Acts from 1907, 1919, and 1927 deedijlg to the city ownership of the watershed for use as
waler supply. In addition, the city poiJjted out that its instream flow program, developed
in conjunction with Ihe Colorado Water Conservation Board (CWCB), the only entity that
can hold instl'eam flow rights under Colorado law, provided sufficient flows to meet the
USFS standard.

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The city nonetheless applied, in 1986, for a USPS special use permit for the
pipeline, continuing to contend that it was exempt from instream flow requirements. Thus
began negotiations betWeen the city iu)d USFS over necessity for a permit and over
contents of the permit, ifissued.

Boulder's Instream Flow Program;

In 1987 the City of Boulder hljd begun in earnest to consider ways to maintain
streamflow in the creeks to preserve fish habitat and enhance the aesthetics of the slream
corridor. Since 1973. the eWeB had held a 15 cubic feet per second (cfs) right for

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