The Renewal of Authorizations to Divert Water on National Forests

• Publication year: 1995
• Pages: 2363

24 Colo.Law. 2363 Colorado Lawyer 1995.

1995, October, Pg. 2363. The Renewal of Authorizations to Divert Water on National Forests

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Vol. 24, No. 10, Pg. 2363

The Renewal of Authorizations to Divert Water on National Forests

by James S. Witwer

What happens to the water [in a forest reserve]? Nothing, except that the flow is steadier. The creation of a national forest has no effect whatever on the laws which govern the appropriation of water. This is a matter governed entirely by State and Territorial laws.

Gifford Pinchot,

Forest Service Chief, 1907(fn1)

Authorization [to continue to use national forest land for a reservoir] will be contingent upon the City maintaining a bypass flow . . . [and] upon the City implementing measures to protect threatened and endangered species. . . . This decision does not claim a proprietary interest in the water nor does it interfere with the State's authority to allocate the quantity of water among users.

M. M. Underwood,

Arapaho-Roosevelt National Forest Supervisor, 1994(fn2)

Gifford Pinchot's nearly ninety-year-old description of water use in a national forest has recently succumbed to a reinterpretation (many would say repudiation) within the agency he helped found. This article attempts to summarize some of the important issues that have emerged to confront water users whose water diversion conveyance or storage facilities are located at least in part on national forest lands.(fn3) It concludes with a list of recommendations for attorneys who represent such water users to help protect the yield of such facilities. The Bypass Flow Controversy

On July 29, 1994, Arapaho-Roosevelt Forest Supervisor Underwood issued several decisions under the National Environmental Policy Act ("NEPA")(fn4) to renew special use authorizations for water diversion and storage facilities located on that national forest.(fn5)

Three of Supervisor Underwood's decisions conditioned the renewal of the special use authorization on participation in the Joint Operations Plan ("JOP") submitted by the Cities of Greeley and Fort Collins and the Water Supply and Storage Company, who operate reservoirs in the Cache la Poudre River Basin. The JOP is a joint schedule of reservoir releases to meet the combined water demand of the participants downstream of the national forest in a manner beneficial to fish habitat.(fn6) In a fourth decision, the City of Loveland, which owns a small hydropower plant on the Big Thompson River, received a renewed authorization conditioned on its voluntary agreement with the Colorado Division of Wildlife to meet a flow release target, subject to emergency conditions.(fn7)

These four decisions follow a 1992 interpretation of existing law by then-Secretary of Agriculture Edward Madigan, who concluded that the Forest Service should

reissue [authorizations] for existing water supply facilities . . . with provisions to recognize and respect both the rights of the applicants and the multiple use objectives of the National Forests. New bypass flow requirements will not be imposed on existing water supply facilities. . . . The [authorization] will also obligate the [facility owner] to accommodate resource goals of the Forest. This accommodation will be to the extent feasible without diminishing the water yield or substantially increasing the cost of water yield from the existing facility.(fn8)

This interpretation has become known as the Madigan Letter. The "resource goals of the Forest" to which the letter refers are developed on each national forest pursuant to the National Forest Management Act ("NFMA")(fn9) in "land and resource management plans," often referred to as forest plans

The term "bypass flow requirement" refers to the mandatory abstention from diverting water which, under state water law, would otherwise be diverted in priority. Despite the Madigan Letter's statement that bypass flows could not be imposed, Supervisor Underwood has taken the position that bypass flows from existing water facilities located in the Arapaho-Roosevelt National Forest may be required to meet aquatic habitat goals that are derived from the forest plan for that forest.(fn10)

The legality of bypass flows is hotly debated;(fn11) their harmful effect on state-decreed water rights less so. Bypass flows reduce the yield of decreed water rights because, for example, storable water that

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is bypassed by a reservoir owner is subject to deduction from the amount of water that can later be stored under that water storage right. Furthermore, there is no assurance that additional water will be legally or physically available to the water user once the bypassed water passes through the dam or other diversion structure. Finally, bypass flows from a reservoir differ markedly from storage releases because they are required regardless of whether the water user can make beneficial use of the bypassed water

The City of Fort Collins was not as fortunate as the other water facility owners who received special use renewals in July 1994. The Forest Service conditioned the renewed special use...