Sidebar by Ed Quillen
Water – October 2001 – Colorado Central Magazine
The bypass flow issue originated in northern Colorado, where plains cities like Greeley had reservoirs on Forest Service land in the mountains. Many of these could contain the entire flow of the river, so that the bed was dry downstream from the dam — but over time, they began to leak, and aquatic life returned to the stream.
Then the cities repaired the dams and the streambeds were again dry. The Forest Service saw this as a threat to its job of protecting the forests. So when the permits for the reservoirs came up for renewal, the Forest Service proposed requiring a minimum streamflow below the reservoir — a “bypass flow.” But there were problems with this, because even though the feds owned the land, the cities owned the water.
One way to look at this is as federal meddling in a state matter — water rights — since a federal agency, the Forest Service, is making rules about water usage on water it has no legal rights to.
From another angle, though, it’s just a landlord-tenant dispute. The special-use permits for reservoirs and diversions typically run from 25 to 50 years, and they’re like a lease. When the lease runs out, the landlord — the Forest Service — presumably has the right to change the conditions of the lease, perhaps by requiring a certain amount of water to be in the stream below the reservoir.
This hasn’t been a major issue in Arkansas drainage or in the San Luis Valley.
Ralph Curtis, general manager of the Rio Grande Water Conservation District in Alamosa, said that “most of our reservoirs are on private land, so it hasn’t come up.”
The exception was Platoro Reservoir, near the headwaters of the Conejos River in Conejos County. When its special-use permit came up for renewal, all local parties involved agreed on a minimum flow of about 3 cubic feet per second, he said.
“But then it went to Washington, and they wouldn’t approve it without a bypass flow of about twice that much,” Curtis said. Over the 180 days of the storage season, that extra 3 cfs amounts to about 1,000 acre-feet of water.
“Platoro has a capacity of 60,000 acre-feet,” Curtis said, “so it would have to be a really dry year for that bypass flow to matter. It shouldn’t have any practical effect on the operation of the reservoir.”
Reservoir bypass flows aren’t a major issue on the Arkansas, or on its Western Slope enhancements, according to Steve Arveschong, general manager of the Southeastern Colorado Water Conservancy District in Pueblo. Reservoirs and diversions on federal land have been able to renew their special-use permits without any serious bypass flow problems, he said.
Terry Scanga, manager of the Upper Arkansas Water Conservancy District in Salida, agreed. “So far, we’ve been fortunate in that regard,” he said. “We cross our fingers when it’s time to renew a special-use permit on Forest Service land, and I guess it works.”
He pointed out that “We want water in the creeks, too, and the way most water rights work here, water gets released when the streams need it most.”
He said there is a problem to be worked out with a proposed exchange of some storage rights on Cottonwood Reservoir. The issue there is an instream flow right of 20 cfs claimed by the Colorado Water Conservation Board, which holds nearly all the instream-flow rights in Colorado.
Although instream flows and bypass flows are related on the ground, they’re quite different in a legal and political sense. Instream flow rights are administered by the state and go through state water courts.
Bypass flows are something that might be required by a reservoir’s landlord (which happens to be the federal government), and are not a water right. They’re more like a condition of use: You want to renew the permit to use this property for your reservoir, that’s fine, but you’ve got to agree to release a certain amount to the stream below the dam, or your permit won’t be renewed.
Bypass flows haven’t become a big issue at the headwaters of the Gunnison, according to Kathleen Curry, manager of the Upper Gunnison River Water Conservancy District.
“I’m pretty sure it will become an issue,” she said, “since we have about half a dozen small reservoirs on Forest Service land. But so far, that hasn’t come up.”
It will come up. That’s the prediction of one of her board members, Steve Glazer of Crested Butte.
The Grand Mesa, Uncompahgre and Gunnison National Forest (GMUG) has more than 1,000 permits for water structures, he said, “more than any other National Forest in the United States.
For the past year, he’s served on the “Pathfinder Committee,” a group of about 15 people who meet all day once a month to examine water issues as the GMUG prepares a new forest plan.
One complex water diversion that has received considerable committee attention is on the East River above the town of Crested Butte. As part of its permit to use Forest Service land, the ski area has a permit to take water from the river for snow-making.
There’s also a state instream flow right on the river, “but it’s one year junior to the snowmaking right,” Glazer said. As a condition of its permit to use federal land, the ski area agreed to take no more than half the water from the river when it’s making snow in October, November, and December.
Thus, although the ski area had senior rights over the state instream flow right, in terms of a bypass flow, it had promised the Forest Service to leave half the water in the river.
For a variety of reasons, it is almost impossible to know whether the resort is abiding by its agreement to leave half the water in the river. That’s a technical issue that can be solved by installing some more stream gauges, though, as soon as they can agree on where to put them.
“My big worry,” Glazer said, “is that if Congress tells the Forest Service that it can’t require bypass flows as a condition of granting or renewing a use permit, then will these current agreements be valid? Or would the ski area be able to take a lot more water out of the East River at a time of year when water levels are already low and the fish are stressed? The state’s minimum flow right won’t mean anything if the ski area doesn’t have to provide a bypass flow.”
— Ed Quillen
