Water for National Forests: The Bypass Flow Report and the Great Divide in Western Water Law

Abstract

This article explains the importance of water originating on national forests to Western states' economies and the environment, focusing on a controversial 1997 report by a badly divided congressionally-created task force that decided, on a 4-3 vote, that the Forest Service lacked the authority to condition rights-of-way permits authorizing water diversions consistent with national forest land plans. The conflict that gave rise to the report concerned diversions to Colorado cities, which the agency sought to condition in order to leave sufficient water instream to protect fish populations and aquatic habitat (so-called "bypass flows").

The article examines the bypass flow issue, which originated in the Poudre River Basin, and the task force report in some detail. The article faults the majority of the fractured report for misinterpreting the 1877 Desert Land Act, the 1952 McCarran Amendment, and the 1976 Federal Land Policy and Management Act and maintains that the Forest Service possesses sufficient authority to impose bypass flow under its authorities under the 1897 Organic Act and the 1976 National Forest Management Act. The article also suggests that the task force misinterpreted the reach of the Supreme Court's decision on federal water rights for national forests in United States v. New Mexico. The article concludes that the task force report represented a missed opportunity for accommodation between federal land managers and water diverters, which perhaps was predictable given the makeup of the task force, whose majority consisted of water diverters and their lawyers.

Keywords: water law, national forests, bypass flows, federal public lands

JEL Classification: K11, K23, K32, N52, o13, O44, Q23, Q24, Q25, Q28, R52