Forest officials defend goal to maintain streamflows
Claims that the proposed management plan for the White River National Forest makes illegal demands on water rights may not be completely correct.
The Colorado River Water Conservation District, a regional water distribution agency, has objected to one of the stated goals of the draft plan. Chris Treese, a spokesman for the district, said the agency’s board of directors objects to language that allows the National Forest to ask towns, irrigators and other water-using districts to give up part of their water rights to maintain minimum streamflows for biological reasons.
This practice is known as “requiring bypass flows.” The language is not found in Alternative D, the preferred alternative under the draft environmental impact statement, but is in the draft plan itself.
A CRWCD board member called the practice of requiring bypass flows “illegal and highly offensive,” according to a press release from the district.
But Andria Holland-Sears, a hydrologist for the White River National Forest, said Friday that federal law requires the Forest Service to keep a certain amount of water in National Forest streams to protect resources. She also noted that a Colorado court decision suggests that requiring bypass flows is the best way for the agency to maintain such minimum streamflows. Moreover, Holland-Sears said, the White River National Forest now requires bypass flows under the existing forest management plan, which has been in effect since 1984.
“We’re mandated to protect those resources,” Holland-Sears said. The National Forest Management Act, the Organic Act (a 19th-century law) and the Clean Water Act all mandate the practice, she said.
“I’d like to add that we are a multiple-use agency,” she continued. “It’s a balancing act. We have to allow development in the forest while conserving the resource.” Allowing water diversion structures on National Forest land is an example of that development, she said.
Towns and irrigators that have special-use permits issued by the Forest Service – permits allowing them to divert water from streams crossing National Forest land – can be required to leave some of the water they previously diverted in the stream, for the purpose of preserving the health of the aquatic environment. The wording in the new plan would allow the Forest Service to make renewal of the special-use permit dependent on the user relinquishing a portion of its water right, Treese said.
In the past, renewal of an expiring special-use permit has been a simple process, Treese said. But he said that under the new plan, water users might have to give up a percentage of their water right in order to be granted a permit renewal.
Holland-Sears noted that in the decision in a 1993 Colorado case known as The Colorado Water Division 1 Water Rights Trial, Judge Robert Behrman upheld the right of the Forest Service to use the permitting process in that way.
“The Court suggested that the Forest Service could use its special-use permitting authority to control diversions within the National Forest in lieu of obtaining water rights,” court documents say.
Treese said other national forests in Colorado have already put such a program into practice, asking for up to 40 percent and even 60 percent of a water user’s right for in-stream flow.
Holland-Sears cited the example of Carbondale’s water diversion setup on National Forest land, where Carbondale has a water right entitling the town to eight cubic feet per second from Nettle Creek. She said the water right Carbondale owns has the potential to dry up Nettle Creek.
The White River National Forest now requires Carbondale to leave 1.5 cfs in the stream in spring and summer, and 0.7 cfs in fall and winter. Depending on the total flow of the stream, that required bypass flow could be up to 18.75 percent of Carbondale’s water right.
Under Colorado law, the only entity that can own in-stream water rights is the Colorado Water Conservation Board, an agency within the Colorado Department of Natural Resources. Because the Forest Service cannot own water rights for in-stream flow, Treese said, the water relinquished by the original user immediately becomes available to any other user.
Treese said the Colorado River Water Conservation District doesn’t oppose in-stream water rights for the purpose of preserving aquatic ecosystems, but he said without involving the Colorado Water Conservation Board, the water gained in that way can’t be protected.
Holland-Sears said she thinks in most present cases in which the White River National Forest has required bypass flows, there is little threat of other users making a claim, because of the streams’ locations.
The state of Colorado, through the CWCB, owns water rights to 8,000 miles of streams and rivers, some at a percentage established to be the minimum streamflow necessary to maintain biological functions and others at up to 100 percent of the flow.
“We’re not saying the White River National Forest should do nothing,” Treese said. “We’re saying they should work with the state.”
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