From the stoppered headgates of the Klamath basin to the last trickle of the Colorado River following its outsized bed to the Sea of Cortez, the dispute about water and federal lands has simmered for decades in the West. Federal agencies and the laws they administer are relative newcomers to the landscape, and agency administrators continually find themselves struggling with entrenched local interests and state laws designed for an earlier era. The conflict is persistently heated in Colorado because of the stateÕs fast growth and because the stateÕs water laws thoroughly reject the idea that water left in streams has value. Now, sparked by the White River National Forest management plan, the dispute is growing even more heated.

Water only rarely flows naturally in Colorado. On creeks and rivers, elaborate networks of pipes and dams collect water for delivery to homes, ranches and businesses across the state, and by the stateÕs first-in-time, first-in-right water law, municipalities can make the creeks go bone dry even on lands that they have no claim to. The U.S. Forest Service, charged with maintaining the ecological health of much of that land, is last in line because municipalities claimed the water first. In times of drought, the Forest Service is stuck with little recourse for providing for the ecosystem under Colorado law.

This quarrel between ColoradoÕs water establishment and the Forest Service comes down to creeks named Fancy, Missouri and French. They tumble off the Sawatch Range and, left to natural ways, flow into Homestake Creek and thence into the Eagle River. Sometimes they donÕt get this far.

These creeks probably went dry several times after the diversions began in 1967. But this is on the White River National Forest, and when municipalities sought a permit in 1983 for an expanded network, the federal agency insisted that small quantities of water be allowed to continue down these streams. These Forest Service requirements are called bypass flows.

ColoradoÕs water establishment objects strenuously. Only a state can allocate water, they say, and even the federal government has no authority over water on federal lands within the state. They further argue that retroactively requiring bypass flows on projects, such as at Homestake, is thievery, the taking of property.

The Forest Service responds that bypass flows stem from the agencyÕs authority over land use, similar to the way a landlord can specify how a renter uses an apartment. In giving permission to these cities to build dams and diversion pipes, the agency is also saying water must be bypassed from those dams.

Republicans—for this is an issue over which Democrats and Republicans consistently part company—want the Forest Service to agree not to impose bypass flows on existing diversions. Instead, in its draft plan of 1999, the Forest Service set the goal of leaving 10 percent of the water in the streams.

Left unchallenged, this assertion will have “chilling effects on water users,” says Josh Penry, spokesman for Representative Scott McInnis, a Republican who grew up in Glenwood Springs. As the White River goes, adds Penry, so go many other national forests and possibly other federal land agencies, including the Bureau of Land Management.

Environmental groups see users more broadly: they include wildlife. “It doesnÕt seem unreasonable that water users should be asked, as a condition of using the public lands, to leave some small amount of water in the streams so that fish and other aquatic organisms can survive and habitat can be maintained,” says Dave Nickum, executive director of Colorado Trout Unlimited.

CONTEXT OF THE DISPUTE

Forestlands in Colorado were set aside a century ago by presidential proclamation. Congress authorized the set-asides, seeking to stop the unregulated cutting of forests that was threatening water supplies. However, Congress did not clearly address whether the federal government had authority over water, or whether it intended for the Forest Service to work within the state laws that adjudicated water.

That muddied authority was of little consequence until the 1960s and 1970s, when Congress passed additional laws specifically directing the Forest Service to protect the environment. When it did so in ways that involve keeping water in streams, however, those efforts were opposed by western states. Its other strategies rebuffed, the Forest ServiceÕs best argument in Colorado is bypass flows.

However, the agency has been timid about asserting this right. According to Trout Unlimited, the Forest Service has required bypass flows only fifteen times in 8,000 special-use permits involving water given to towns, ranchers and others.

In 1992, in the waning days of the former Bush administration, Agriculture Secretary Edward Madigan sent a letter to Colorado Senator Hank Brown that promised new bypass flow requirements would not be imposed on existing water supply facilities. Bypass flows, he said, would apply to only new water diversions on national forests.

This was a compromise, and it affected projects important to BrownÕs constituency in and around Greeley and Fort Collins. These farms and cities have depended for a century on water projects that regulate snowmelt on the national forests adjacent to Rocky Mountain National Park.

One practical repercussion is that the Forest Service agreed that no water need be released from Long Draw Reservoir during winter, allowing two miles of La Poudre Pass Creek to become dry. Disgusted by this, Colorado Trout Unlimited sued the Forest Service in 1995, charging that the agency had abandoned its responsibility to the environment.

“You look at the geography there, and we say, ‘Good grief, if we canÕt protect a stream in our crown jewel lands, where can we protect a stream?’” says Nickum.

This is an important test case, and some expect the U.S. Supreme Court to ultimately decide it. Whatever the judicial outcome, however, western Republicans may attempt to craft their will in Congress. “Representative McInnis is watching that case very carefully, and if the decision runs counter to what he thinks is proper, he stands ready to attack the issue legislatively,” says Penry.

Meanwhile, during the Clinton administration, the Forest Service got more assertive again, as revealed in forest management plans being revised during recent years. Now, with Bush the younger in office and new officials at the top in the Forest Service, Colorado Republicans hope they can cause the agency to retreat.

THE WHITE RIVER PLAN

Glenwood Springs is the epicenter for this dispute. The town has more water lawyers and engineers per capita than any other in Colorado. Water supply for this town, perhaps not incidentally, also comes from the White River National Forest. The forest headquarters is also there.

The city’s primary water supply comes from Grizzly and No Name creeks with rights filed about a century ago, contemporaneous to creation of the national forest. Four miles and a thousand feet above I-70, where Grizzly Creek thunders down from the Flat Tops, the city has a concrete dam, a steel pipe and a tunnel. Because this is on national forest, the city must get a special-use permit.

Two years ago, putting in new pipe, the city applied for a renewed permit. The Forest Service agreed, but this time Forest Supervisor Martha Ketelle asked that the city negotiate with the agency for bypass flows. The city owns twenty cubic feet per second of water, probably enough to dry up Grizzly Creek in low-flow months, and aquatic biologists are deciding how much water should remain in the creek. “It’s our responsibility to ensure the viability of public lands,” says Ketelle.

This water supply easily meets the needs of the 9,200 full-time residents, plus the town’s sizable summer crowds. But if bypass flows are substantial, and if Glenwood Springs continues to grow rapidly, and if there’s a drought, could the city come up short?

That’s a long list of ifs, but in the mind of Chris Treese, spokesman for the Glenwood SpringsÐbased Colorado River Water Conservation District, it could conceivably cause the city to invest millions in an expanded water network.

Robin Millyard, public works director for Glenwood Springs, won’t go that far. “It has the potential to impact, but the magnitude I’m not going to speculate,” he says.

COLORADO’S SOLUTIONS

Bypass flow opponents say Colorado should rely on the state’s minimum instream flow requirements. That program worked to defeat a water development proposal that would have impaired the beauty of Hanging Lake, also in Glenwood Canyon.

However, in most cases, minimum streamflow rights are junior, as in the three cubic feet per second the state filed at Grizzly Creek. The state’s water right has a seniority of 1985, compared to the city’s 1908 right, so Grizzly Creek’s water could be gone before the state’s minimum streamflows are allotted.

Another approach, advocated by Senator Wayne Allard, is for the federal government to buy water rights. To ensure water in streams at the new Great Sand Dunes National Park, Congress is doing just that. “All that Senator Allard is asking is that the federal government go through the same process as you or I or anybody else out there has to go through,” says Allard’s press secretary, Sean Conway.

This year, McInnis, Allard and other Colorado Republicans have stepped up their attack on bypass flows. A subcommittee chaired by McInnis during May called on Forest Service officials to explain where they are headed.

Agency representatives waffled. They defended at least sparing use of the policy but also gave Republicans hope that the agency, under the new chief, Dale Bosworth, will agree to fall back to its more passive position during the last days that Republicans held power in Washington, D.C.

“It was an opening salvo in this debate to let the administration know it is a hot issue, and we’re not going to go away,” Penry says in explaining the reason for the hearings. In Bosworth the Republicans see someone with “values that are a lot closer to the mainstream than the previous regimes.”

However, they also see stubborness within the agency because, as Penry says, “a lot of people in that agency are wedded to this policy.”

THE REAL ISSUES

This issue remains largely theoretical. The real argument is about the future, when water scarcity increases as the West fills with people.

“The real issue is one of control,” says Bennett Raley, a Denver-based water lawyer who recently was appointed to a position in the Interior Department. “As a state, we have spent, over the years, hundreds of millions of dollars in adjudicating the water system. If bypass flows can be imposed by the Forest Service with respect to water on the national forest, those water rights are meaningless.”

It is, adds Raley, “like having a traffic law that says you can yield to the right and another set of laws that says you can yield to the left. You can’t have both, because you’ll have a wreck.”

Steve Maloch, counsel for Colorado Trout Unlimited, sees a different pivotal question. That is whether western laws developed during mining booms of the nineteenth century will serve those states during the twenty-first century as migrations premised on recreational and environmental quality swell populations.

Our system of first-in-time, first-in-right, created by California forty-niners to prevent miners from shooting each other (and a system later perfected in Colorado), sees water left in streams as wasteful, he says. The law can’t accommodate new recreational and environmental perspectives that value water remaining in streams.

“It is fair to ask where will water come for future population and economic growth, and the answer for 150 years has been, ‘Go dam another river, go build another canal and develop new water supplies,’” he says. “But we are coming and have come to the end of that era, and changing to a new system of developing water supplies is hard.”