August 12, 1992

The Honorable Edward R. Madigan

Secretary

U.S. Department of Agriculture

Independence Ave. & 12th St., S.W.

Washington, D.C. 20250

Dear Ed:

The Arapaho/Roosevelt National Forest is located in Colorado and Wyoming. Many cities depend upon water diversion, storage, and treatment structures in the Arapaho/Roosevelt National Forest to maintain secure municipal water supplies. These facilities are operated and maintained under Forest Service special use permits issued under the Federal Land Policy and Management Act of 1976 ("FLPMA") or prior federal right-of-way grants. Some of the facilities are quite old and were even constructed prior to the reservation of the National Forest, nearly 100 years ago.

We have been informed that the Forest Supervisor for the Arapaho/Roosevelt National Forest takes the position that the Forest Service has the authority to impose bypass flow requirements as a condition of the renewal of the special use permits or approvals of the maintenance and rehabilitation of municipal water diversion and storage facilities located on the Forest. If implemented, these requirements would result in the loss of the historic yields relied upon by these water providers. This position violates the law, injures vested property rights, destroys established management practices, and would result in the implementation of environmentally damaging alternatives by the cities which would be forced to replace these supplies from other sources.

The Forest Supervisor relies upon the FLPMA and the National Forest Management Act ("NFMA") as authority for the bypass flow program. Neither of these acts, however, compel, or even authorize, the Forest Service to restrict the yield of preexisting water rights. To the contrary, a primary purpose for the establishment and management of the National Forests, including the Arapaho/Roosevelt National Forest, is to supply western communities with water under state established and administered water rights.

Moreover, the environmental goals of the Forest can be achieved under existing law without taking private property and overturning a century of federal deference to state water allocation and administration systems.

Water rights can be obtained for instream purposes under state law, and if additional water is needed, it can be purchased and transferred to instream flow uses.

The water rights held by these cities are critically important. Many western communities store water on the national forests during the spring snow melt for release and use downstream during low flow periods over the remainder of the year. Other communities, because of the location of their service areas, rely on direct diversions from streams which flow through the national forests. Such water management practices actually provide environmental and recreational benefits, rather than impair or destroy fish and wildlife. A cooperative system of water management, for example, in the Upper poudre River Basin, has evolved since before the turn of the century. The policy of the Arapaho/Roosevelt National Forest should be designed to continue fostering these practices, not to destroy or diminish the value of these important assets.

The value of an acre-foot of developed water in Colorado's Front Range varies from $2,500 to $11,500 per acre-foot of yield, averaging approximately $7,500 an acre-foot. Moreover, many communities have invested millions of dollars in capital facilities such as pipelines, reservoirs and water treatment plants. These expenditures will be lost or diminished in value, and significant new investment will be required if the bypass flow program is implemented. The Forest Service does not propose to compensate any of the communities for loss of water yield or their capital expenses. The present and future well-being of these communities depends upon continued exercise of their existing rights or, if they are to be deprived of any portion of their water yield, being provided with the necessary funds and governmental approvals required to replace the lost yield and facilities.

We cannot overemphasize the importance of this issue. If the Forest Service is allowed to proceed in this manner, this administration will have taken private property rights, interfered with the development and use of state and interstate water allocations, and replaced state water administration systems with a federal permit system.

In 1984, Mr. Douglas W. MacCleery, Deputy Assistant Secretary of the U.S. Department of Agriculture testified on behalf of the Department of Agriculture regarding the position of the Department on related FLPMA issues. He stated that: "I want to make it clear that there is no intention to jeopardize water rights or other rights held by the permittee at the time of renewal." This position should not be changed. We are certain that neither you nor the President intend such a result, and request that you immediately adopt a policy which confirms that the special use permitting authority of the United States will be exercised in a manner which is consistent with the preservation of private property rights, assists States in the development of important water resources, and does not usurp state primacy over water allocation and administration.

We would like to meet with you to discuss this matter at your earliest convenience after the conclusion of the August recess.

Sincerely,

October 6 1992

Honorable Hank Brown

United States Senate

717 Hart Senate Office Building

Washington, D.C. 20510

Dear Hank:

Thank you for your August 12 letter regarding the renewal of special-use permits for water supply facilities on the Arapaho/Roosevelt National Forest in Colorado. I understand the importance of this issue to cities throughout the west that depend on facilities located on national forest lands for their water supplies.

This is a complex issue, but one that I believe has been resolved in a manner that is satisfactory to all interests. This progress is due in no small part to your ongoing interest and leadership in this important area.

I want to assure you that it is the policy of the Forest Service to ensure that private property rights, including water rights, will be recognized and protected in the course of special-use permitting decisions for existing water supply facilities. In addition, the Forest Service will recognize and respect the role of the States in water allocation and administration.

I agree that the Forest Service should not take actions that reduce historical water supplies from facilities located on national forest lands. The Forest Service will reissue permits for existing water supply facilities for 20 years 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. However, unless amended, all permits will authorize only historical water rights associated with existing facilities. The permits will also obligate the permittee 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 the water yield from the existing facility.

In summary, special-use permits for existing water supply facilities will:

- Authorize the use, operation, maintenance, repair, and

replacement of the existing facilities described in an

enclosure to the permit for the exercise of the water rights

and water conservation or management practices described in an additional enclosure to the permit. The permit will not

authorize expansion or enlargement of the facilities or

water rights, water conservation, or management practices

described in the enclosure.

- Require the permittee to operate the facilities in a

manner that accommodates the resource goals of the national

forest without reducing the yield of the water rights or

significantly increasing the cost of the water yield from

the existing facility.

- Require the permittee to provide the Forest Service, on

an annual basis, a copy of the official records of the State

agency having responsibility for administration of the water

rights for the facilities described in the enclosure.

I am pleased to see that progress has been made on this issue and will instruct the Forest Service to reissue permits in accordance with this letter. I have asked the Chief of the Forest Service to initiate discussions with local interested parties to identify ways for carrying out the provisions and objectives of the individual permits.

Sincerely,

_

for Edward Madigan

Secretary

October 9 1992

Honorable Hank Brown

United States Senate

717 Hart Senate Office Building

Washington, D.C. 20510

Dear Hank:

This letter is a follow-up to the one I sent to Senator Wallop on October 6 in response to his August 12 letter regarding special-use permits for water supply facilities on the Arapaho/Roosevelt National Forest in Colorado.

You asked for clarification of what is meant by the following sentence in paragraph 4 of my October letter: "New bypass flow requirements will not be imposed in existing water supply facilities."

The entire October 6 letter is directed at clarifying conditions for renewing permits for existing water supply facilities only, and is not intended to pertain to new water supply facilites or expansions of existing ones.

An underlying principle for renewing permits for existing facilities, as stated in the same paragraph of the October 6 letter as the sentence in question, is: "...unless amended, all permits will authorize only historical water rights associated with existing water supply facilities." The sentence in question is intended only to emphasize that no new bypass requirements will be imposed beyond any that may have been specified in the old permit for the existing facility.

Sincerely,

for Edward Madigan

Secretary

08 Nov 1992

Honorable Hank Brown

United States Senate

717 Hart Senate Office Building

Washington, D.C. 20510

Dear Sentaor Brown:

Thank you for your September 21 letter to Secretary Edward Madigan on behalf of the cities of Greeley and Loveland, and the Grand County water and Sanitation District, regarding the Forest Service position on bypass flows. The Secretary has asked me to respond to your letter.

Secretary Madigan’s October 6 letter to you clarified our policy that ensures protection of private property rights, including water rights, when renewing special use permits for existing water supply facilities. This same policy applies to Greeley, Loveland, and the Grand County Water and Sanitation District facilities. The Forest Service will reissue special use permits for the city of Loveland’s hydroelectric project on the Big Thompson River and Public Service Company of Colorado’s hydroelectric project on Middle Boulder Creek consistent with the conditions of the Federal Energy Regulatory Commission licenses for the two projects.

We appreciate the interest of the respective City Officials in operating these facilitries in harmony with the environment. The Forest Service will continue to work with the municipalities to achieve this objective.

Sincerely,

JOHN H. BEUTER

Acting Assistant Secretary

Natural Resources and Environment

Enclosure