DRAINING THE FORESTS
The US Forest Service was created to protect water. But in practice, its protection of vital resource is lacking Jacy Marmaduke Fort Collins Coloradoan USA TODAY NETWORK
While the U.S. Forest Service pours resources into a runaway battle on wildfire, it is losing the war over water.
About half of Western water supply originates on national forest land. But before that water reaches the West’s major cities or great rivers, much of it has already been claimed. Thousands of farmers, ranchers, cities, housing developments and industrial users pump water from the ground, channel it away from streams into ditches or pipelines, and hold it back in ponds and reservoirs — all to use public water, often for private purposes.
The Forest Service issues permits for these uses, and it can deny those permits or put restrictions on water use.
These permitted water diversions can be found on nearly every national forest in the United States.
The permitting offers only threadbare oversight in practice, a USA TODAY Network investigation of Forest Service water data reveals.
The agency allows thousands of structures that divert or transport water — including dams, pipelines, wells and irrigation ditches. Some water users hold permits more than a century old.
The Forest Service produced little evidence that it limits water diversions.
The Forest Service continues to issue permits, authorizing more than 2,100 in the last 10 years. It is unclear how many of those are renewals of old permits, and how many are for new structures.
The agency also allows diversions to run long past their expiration dates.
Of about 7,500 authorized uses, about 1,000 have been expired for three years or more. Some 1,600 other authorized water uses may never expire, because Congress has effectively locked them into place.
Rather than encouraging forest water conservation or empowering the Forest Service to do more, a federal law known as the Ditch Bill required the agency to issue permanent authorizations for some of the oldest water structures.
The Forest Service’s duty
While Western states are responsible for administration of legal water rights, the Forest Service is uniquely tasked with protecting streamflows on American headwaters. “Securing favorable conditions of water flows” is listed alongside forest protection and timber production in the Organic Administration Act of 1897, the legal document that established the Forest Service. The waterways that begin as trickling streams among the trees have tremendous importance for rivers and cities that may be hundreds of miles downstream.
Yet the Forest Service, in response to this investigation, produced little evidence that it limits water diversions, or that it even knows how much water is taken from Western forests each year.
The USA TODAY Network obtained a database of all water-related permits through a Freedom of Information Act request. That permit data includes no record of the amount of water diverted from forests — even as the pressures of climate change mean thirstier trees, parched soils and rapidly declining water availability in the Colorado River basin and across much of the West.
The Forest Service’s past attempts to impose new requirements on water users and preserve streamflows led to losses in the courts of law and public opinion.
The result of these combined issues — poor management, legal setbacks and legislation that discourages conservation — is a limited tool chest of options for safeguarding water. And the agency rarely reaches into it, the investigation
found.
While it could enforce limits on some water users, it rarely takes those steps, environmentalists and experts who have worked for the agency say. While it could pursue legal protections to keep some water in rivers, the agency has largely abandoned efforts to stake out federal claims, and rarely seeks protections under state programs in some Western states. While it could take a page from environmental nonprofits and work with water users to create healthier watersheds through voluntary measures, the water users interviewed for this story see the Forest Service as little more than a reliable purveyor of paperwork.
Instead of “securing favorable conditions of water flows,” the agency has developed a reputation among environmentalists for cowing to the interests of water users at the cost of the resources it is legally bound to protect.
“As much as it has this great history and identifies around natural resource protection, the agency has become captive to all these interests that have permits and leases and contracts to operate on these lands,” said John Horning, executive director of environmental advocacy nonprofit WildEarth Guardians. “It’s one thing to be open for business. It’s another thing to be solely serving the businesses that are privileged to operate on our national forests.”
In response to reporters’ original requests, the agency took more than a year to provide a database of permits. Months later, instead of answering initial questions about the data, the agency
sent a different version that an administrator said was “more user friendly.”
National press officer Babete Anderson “politely decline(d)” multiple requests for interviews with regional and national officials, and instead agreed to accept written questions.
The agency ultimately answered only half of about 100 questions sent to the national office and regional office in Colorado. Many of the answers, provided after months of follow-up, directed reporters to file additional public records requests. The outstanding questions gave the Forest Service an opportunity to explain the agency’s apparent inaction on water preservation.
Reporters spent six months seeking interviews about the subject. They spoke with one water-rights manager in Montana and two database managers who the agency made available for only 30 minutes.
Asked about the Forest Service’s water preservation mandate at a public event in September, USDA Secretary Tom Vilsack steered the conversation to fire.
“We need to triple the number of acres we treat so that we reduce significantly the hazardous fires that we’ve been experiencing, and will continue to experience as long as we aren’t properly maintaining our forests,” he said. “... Forests act as a natural conserving reservoir for water. You’ll improve the capacity for water to be retained because you’ll have a healthier forest.”
The Forest Service’s budget for fighting wildfires more than quadrupled over the past 30 years as funding for other pursuits stagnated. As a clampdown in federal spending locked the agency’s total budget in place, staffing for water and wildlife efforts suffered significant cuts while wildfire-focused staffing soared. The staffing cuts have left most Western forests with a single hydrologist covering the entire forest, if that.
As the Forest Service continues to permit unchecked water diversions, the agency acknowledges that climate change could shrink its water supplies in the arid West.
Supplies drying up
A climate model used by the Forest Service projects a drier future for important watersheds.
The Forest Service’s own modeling, based on a future with relatively low carbon emissions, shows increased runoff in some areas, but it predicts major declines from some crucial Western territory.
This model estimates the change in annual runoff in the coming decades compared with the annual average from 1960 to 2015.
West of the Continental Divide, average annual runoff from land inside forest boundaries would decline by nearly 3 million acre-feet.
That’s essentially the same as turning off the entire supply of Colorado River water available to the state of Arizona each year.
In Colorado, some forest-land watersheds that drain toward the Colorado River are expected to lose water, even under a climate change scenario projecting a relatively wet future. That includes Grand Mesa National Forest land, which is in an area the Forest Service considers important for drinking water supplies.
In other states, the picture looks worse. Utah national forests, already grappling with declining river flows, may net nearly a half-million acre feet less on average each year. Forests in Nevada, already the nation’s driest state, may yield about 40,000 acre-feet less water on average annually.
And California forest watersheds, gripped by historic drought, may net roughly 2.7 million acre-feet less overall.
Much of the loss is projected to come from the Shasta-Trinity National Forests, which contain watersheds the Forest Service considers highly important for drinking water.
Forest Service researchers determined percent change using a climate
model with a relatively “wet” scenario. The researchers projected change based on a future with relatively low carbon emissions, and one with unlikely and extremely high emissions.
Climate scientists typically use models to compare how the climate is likely to change under different amounts of environmental interventions. This map is showing the low-emissions model, which is considered to be fairly optimistic.
This map reflects only one potential future, and predicting precipitation comes with a lot of uncertainty.
Cut off from the start
Taking water from a river, especially at its headwaters, is like “cutting the Achilles tendon of a runner at the start of a race,” said Ellen Wohl, a Colorado State University fluvial geomorphologist who studies the interactions of river channels, water and land. As altered river systems flow downstream in a weaving dance of ever-taxed tributaries, the repercussions of diversions begin compounding.
The loss of water makes rivers hotter, siltier and more polluted. It elevates flash-flood risk as sediment chokes straitjacketed rivers. It beckons invasive species into drought-imperiled river corridors, where they swiftly armor banks and conquer riparian ecosystems. It dries up low-lying wetlands where wildlife once thrived and makes survival an obstacle course for aquatic life.
“A river is not just an irrigation canal that conveys water downstream,” Wohl said. “It supports an enormous diversity of organisms, from microbes to plants to animals, and they all depend on the water. If you take the water, that’s gone.”
Native American tribes in some Southwestern valleys were building diversion structures and irrigation canals long before European explorers arrived.
What’s different now, beyond the rising number of water users, is the chokehold of a changing climate.
The Forest Service began issuing diversion permits when forests were in a fundamentally different state — before temperatures rose across the West, before the most severe drought in 500 years swept many southwestern forests, and before those forces combined to devastate water availability in the forests where the most diversions take place.
“When you take away water from downhill forests, you’re taking water away from the forests that really could use the water the most,” said Park Williams, a hydroclimatologist at UCLA. “That opens the door for basically anything that can cause tree death.”
Continual upstream diversions also mean there is less water remaining downstream. The danger is most serious for streams that are diverted from top to bottom.
“These high mountain diversions take water out of the stream channels and put it in pipes, and then the pipes are leading to reservoirs, and the reservoirs are leading to ditches, and those go out to agricultural fields or municipal water supplies ... all those little diversions are killing the rivers farther downstream,” said LeRoy Poff, a freshwater ecologist and biology professor at Colorado State University. “It’s like a death by 1,000 cuts.”
In fact, the agency’s special-use permits for water-related structures number more than 5,000 across the West.
Forest water permits are held by users of all kinds, including major cities and towns too small to make the census.
But the way the diversions capture water is evident in examples that cross nearly any Western forest.
The water originates in underground springs, snowmelt or mountain rain, at high elevations. As it cascades downhill, diversions claim some water, and then some more.
By the time those high-elevation streams reach mainstem rivers, much of the water has already vanished — even as a changing climate throws water systems into chaos.
How a system uses every last drop
It was nowhere near 5 o’clock, but the birds already looked tipsy off the cocktail of Bob Morris’ ruined apple trees.
The fruit had frozen solid overnight. It was late October 2020 near Cedaredge, a town of about 2,400 on Colorado’s Western Slope. It had been 70 degrees until temperatures plummeted into the teens following a sudden snow. The trees, still covered in green leaves, hadn’t had a chance to harden for winter.
The frozen apples had fallen from the trees and rolled downhill, bathing in the sunlight reflecting off the snow. They thawed in two or three hours — so fast that juice was popping out of their skins.
Birds had gathered at one of Morris’ orchards for a round of flash-fermented apple juice. It was a horrific sight, though he can laugh about it now.
He lost about 20,000 trees in all — some apple, pretty much all his peach crop, all his sweet cherries. The freeze
was especially destructive because fruit trees take years to regrow, assuming they have favorable weather and steady water supply.
Morris can be sure of neither. “I’ve got bare ground for five or six years, in certain areas,” said Morris, owner of Red Mountain Ranches and one of the five remaining fruit growers in the Cedaredge area. “I can replant, but I don’t know if I’m going to have any water.”
That’s the thing about farming or ranching in a place where drought has become the default: Whether you’re dealing with fire or flood, freeze or heat wave, it always comes back to water. There simply isn’t enough of it — even in the valleys below the Grand Mesa, where the largest flat-topped mountain in the world functions as a massive water tower for agricultural producers.
The Grand Mesa sits on the Grand Mesa, Uncompahgre and Gunnison National Forest, which has more than 700 water structure permits and ditch bill easements — more than any other forest in the nation. About 12% of the water in the Colorado River below the Hoover Dam comes from this forest, according to a Forest Service analysis.
Of the 300 lakes that stud the mesa top, roughly 100 capture mesa snowmelt for irrigation in and around Cedaredge to the south.
The Forest Service issued permits and easements for them all, except for those predating the forest.
While these mountain lakes form shimmering reflecting pools for groves of spruce, pine and aspen, few of them are natural and almost all are part of an elaborate system built to catch thousands of acre-feet of mesa snowmelt.
Before the water reaches the end of that system, irrigators try to use every drop they can capture.
“We start feeling bad if we have water going into the Gunnison” from the Grand Mesa, District 40 lead water Commissioner James Holiman said.
The web of forest-permitted Grand Mesa reservoirs holds snowmelt back until water administrators funnel it through a network of irrigation ditches and municipal pipelines. During irrigation season, the system ensures that almost no water flows from the south side of the mesa to the Gunnison River, which sends that much less water to its confluence with the Colorado River about 60 miles downstream.
With a good map and even better directions, you can trace the water that keeps the Cedaredge area’s orchards, pastures and alfalfa fields alive all the way back to its source: the top of the Grand Mesa.
Funneling forest water
Here, the 11,200-foot spine of Crag Crest divides the mesa roughly into northern and southern halves. The southern-central region of the mesa produces most of its snowmelt, which is stored in a series of reservoirs to temper its flow through dozens of tributaries. That network of tributaries eventually drains into a few major streams.
One is Surface Creek, which begins as a dribble amid greenery at about 10,000 feet in elevation.
More than a dozen reservoirs hold back its waters before the creek meanders off the mesa. From there, Surface Creek is so consistently diverted that it usually runs out of water before the end of its course.
By the time Surface Creek reaches the town of Cedaredge, it’s almost out of water. But there’s far more to the system.
Back up on the mesa, more forest reservoirs capture flows from four other main drainages and their myriad tributaries. Instead of letting the water flow downstream from the forest, state water commissioners “deliver” it — releasing it when water users place orders in advance.
Dozens of irrigation canals south of the forest border capture the water and send it to fields, where it waters grass and alfalfa, fruit trees and pasture.
Water flows down creeks like Ward Creek, until it reaches a canal, appropriately named “Big Ditch.”
That ditch cuts across those major creeks — from Kiser Creek to Youngs Creek, Youngs Creek to Surface — picking up much or all of their water along the way.
Kiser Creek descends through another set of Forest Service-authorized reservoirs, each one storing some of its flow. Once it reaches Big Ditch, the remainder of its flows can be channeled away.
Uphill of Big Ditch, Kiser Creek was a flowing stream on an early August afternoon. Downhill from the ditch, its course could barely be deciphered amid the dry undergrowth. Big Ditch had taken all its water.
Big Ditch ends in Cedaredge, where it dumps its contents into Surface Creek.
Surface Creek makes it less than a mile before it hits another irrigation canal: Alfalfa Ditch.
This holds the highest-priority water right for the creek’s streamflows. Much or all of its remaining flow ends up in a nearby valley, where sprinklers irrigate forage crop. Even runoff from these fields is captured for later use.
Any water left in Surface Creek continues to flow toward Tongue Creek. Along the way, still more farms and ranches get a cut. Whatever the plants don’t use seeps into the ground or runs off fields, making it back to streams days or weeks later as “return flows” that other ditches scoop up downstream — the need for water is that acute.
Tongue Creek, too, usually runs dry before its confluence with the Gunnison River. One last ditch will often dam up the creek and take whatever’s left, said the water commissioners who dole out water to the network of canals south of the mesa.
The forest reservoirs enable irrigators to capture all the runoff, but it’s still not enough to meet the area’s needs.
Grand Mesa snowpack is on the decline. It’s been below the 1991-2020 average 7 of the last 10 years, according to SNOTEL data, and that average has declined almost 13% from the 1971-2000 average. Climate change is a salient threat to the Grand Mesa because its snowpack sits at a relatively low elevation, leaving it vulnerable to snowfall declines and early melting, according to research by Colorado Mesa University graduate Meghan Cline and a 2012 Forest Service assessment of the GMUG forests’ climate change vulnerability.
The Forest Service assessment listed the Grand Mesa as one of the most concerning areas for climate change impacts because it checks three important boxes: One, it has potential to be a climate change buffer for fish and other creatures seeking refuge from rising temperatures and lower streamflows. Two, many of the communities that sit below the mesa rely on it as their main water source. And three, climate models predict that by 2040-2060, plants and soil on the mesa will lose more water to evaporation and plant growth than they gain from rain or snow.
This change puts the forest in danger of increasingly dry soil and plant life, withering groundwater and even lower streamflows, according to the Forest Service report.
Since the Forest Service published that report, the Grand Valley Ranger District that oversees the Grand Mesa has authorized at least 26 water structures. Sixteen of the authorizations, protected by newer federal law, will never expire.
Like the Forest Service report highlights, water availability is about more than just snowpack. Streamflows decline in response to hotter and drier weather because dry soils and evaporation take a bigger cut of the runoff.
That’s exactly what happened to Cedaredge farmers this year: Their corner of the mesa got about 70% of normal snowpack, but it didn’t translate to 70% of streamflows. Area farmers and water commissioners said it was the worst summer they could remember since the historic drought of 1977.
“We had no rainfall last fall, and that ground baked dry,” water Commissioner John Walker said.
While all water users have some kind of claim to the mesa snowmelt, their rights fall into a priority order based on how old they are.
When there isn’t enough water flowing in a stream to meet a senior streamflow right, water administrators can respond by cutting off water to one junior user at a time until the senior water user can get their full water right. The process, known as a “call,” happens every summer. What was unusual this year was that the calls affected some of the most senior water users much earlier than normal.
On Surface Creek, only the most senior ditch in the system was allowed to take water off the creek as of mid-August. Even that ditch could only access about 45% of its water right, commissioners said.
Everyone else was relying on reservoir storage, which wasn’t doing well, either. This was the Grand Mesa’s second straight year of mediocre snowpack followed by a hot, dry summer. The Grand Mesa Water Users Association came into this irrigation season with reservoirs about half full.
As of mid-August, storage was at about 30% to 35% of capacity with weeks of hot, dry weather to come.
“On a normal year, 30% to 35% is what we carry over to the next year,” Walker said. “We are there now, in the middle of August. We’re in deep (trouble).”
Walker is one of five water commissioners on the south end of the mesa. The commissioners, who are state employees, work with the Grand Mesa Water Users’ Association, the Grand Mesa Water Conservancy District and several private reservoir companies and ditch operators to manage some 29,000 acrefeet of snowmelt for irrigation and a handful of municipalities.
That would be 29,000 acre-feet if all the reservoirs were full. Morris, who’s also president of the water users’ association, thinks they might head into next year with 5% carryover.
Looking at the reservoirs in mid-August, it wasn’t hard to believe. While the “pressure reservoirs” that administrators keep as full as they can to maintain consistent pressure in the delivery system were in decent shape, close to half of the reservoirs in the system were empty. Others looked like puddles encircled in wide rings of mud.
During a mid-August reporting trip, water was still flowing from Surface Creek into Tongue Creek. The unexpected bounty was thanks to a recent rain that had the town abuzz. That rain, more than 1.5 inches in two days, briefly lifted streamflows to normal levels as irrigators turned off their water orders. It didn’t last. Streamflows in Surface Creek and the Gunnison near its confluence with Tongue Creek were almost as low as they were before the rain, or even lower, within about a week.
Downstream losses compound
As the Gunnison flows west, its confluence with the Colorado looks like a meeting of two chocolate milks, the Colorado a deeper brown. It takes miles for their waters to form a common hue. Dry, ochre wilderness creeps just beyond strips of watered lawns, irrigated pastures and surviving riparian areas, a reminder of what the land might look like without all that water.
More consequences of climate change and continual water diversions are visible below the rivers’ confluence at the Audubon Nature Preserve, a labor of love for the Grand Valley Audubon Society. Former gravel pits serve as a substitute for some of the wetlands that have disappeared from the riverbanks over the last few decades.
The Grand Valley Audubon Society worked with Ducks Unlimited and other
groups to fill a series of shallow ponds with leased water from an adjacent irrigation ditch and overflow from the Colorado River. The birds came, and so did the bugs and some native vegetation.
The build-your-own wetlands strategy offers comparable benefits to the real thing, Audubon volunteers said, but water remains the limiting factor. On an August morning bird walk through the preserve, Grand Valley Audubon President Cary Atwood and board member Mike Campbell spotted more than a dozen bird species flying nearby and wading in ponds filled with canal water.
The other side of the preserve, which relies on Colorado River flows, was a different story. Near the entrance, rows of dead trees wrapped in wire mesh stood above forgotten black hoses. Volunteers planted them a few years ago, wrapping them in wire to ward off beavers and returning regularly to water them. But most of the trees didn’t survive the summer heat.
“It was so incredibly hot,” Atwood said, disappointment tinging her voice. “It was a great idea, but it was unsustainable because of the heat, and because there’s no water to pull from on this side.”
Invasive species, meanwhile, are thriving on riverbanks amid the water shortages. Tamarisk, Russian olive and kochia surround drought-stricken riverbanks in Grand Junction and beyond.
Invasives flourish in hot weather and wildfire-scarred terrain. Because their long, spindly roots can reach the meagerest of groundwater tables, they easily outcompete native plants like cottonwoods and willows and take over the riverbanks. They also act as ladder fuels, allowing fire to spread more quickly in previously insulated riparian areas.
In the Grand Junction area alone, fires have burned about 300 acres of riparian forest over the last three years, said Rusty Lloyd, director of Rivers Edge West, a nonprofit focused on riparian restoration.
After the fires, the invasive species sprung back stronger than before. The loss of those vivid green riparian ribbons also heightens flash flood risk and hurts water quality — the same dangers posed by headwaters diversions — because there are fewer healthy, native plants left to filter polluted runoff and sediment.
“The emphasis for healthy riparian areas is not just, ‘We want pretty trees,’” Lloyd said. “Healthy riparian areas help produce more water. They help produce cleaner water.”
Irrigators upstream know rivers are struggling, and they said they’re not opposed to the notion of preserving streamflows for the environment.
“But who’s gonna benefit if we supply water for fish?” said Chann Fogg, who grows fruit south of the Grand Mesa and is president of Park Reservoir and Child’s Ditch. “I mean, I like to fish, don’t get me wrong there. But there’s a (conversation about priorities) that we have to definitely take a look at.”
What’s happening in the valleys below the Grand Mesa isn’t water users’ fault, said Andy Mueller, director of Colorado River District. He said his organization “would probably have to oppose” revised terms on Forest Service permits that reduce the amount of water permittees could remove from the forest because of the economic challenges it could create.
“It would be easy to point to the private permittees and say they’re the problem,” he said. “But the reality is, those forests are changing faster than we’ve ever seen them.”
Kicking rivers while they’re down
The Grand Mesa National Forest is just one example of a dynamic playing out across the West as climate change collides with antiquated water systems and agency inaction.
Put simply, the amount of water available in many areas is declining even as new permits are issued. And the problem will get worse.
The aridification of the West means mountain snowpack, the region’s principal water source, is melting away. It’s decreased between 15% and 30% across the West since 1915, according to research published in NPJ Climate and Atmospheric Science.
Rising temperatures mean more of the water that is available is lost to the soil and the air before it reaches reservoirs, pastures and municipal water intakes.
“This is certainly going to be one of the biggest problems in the Mountain West over the next 50 years for climate change,” said Scott Denning, a climate scientist and atmospheric science professor at Colorado State University. “The previous balance between water supply and water demand is being upset in the direction of more water demand, but it’s not being compensated by more water supply.”
The water losses are especially troubling for agricultural producers, who consume about 70% to 80% of water in the West. Many farmers and ranchers are seeking out or have already made efficiency and conservation gains, but their diversions have harsher impacts
on streams that are closer to failure points.
“Forests are hurting,” Williams, the UCLA hydroclimatologist, said. “When all of these trees are on the brink of death from thirst, then they’re going to be using a large fraction of the precipitation that falls, leaving a smaller fraction in the soil or to run off in streams.”
The West’s waning water bank is largely a consequence of rising temperatures and persistent drought, but unfettered diversions are a contributor — and they have the effect of kicking rivers while they’re down.
“Up until recently, I’ve always maintained that the alterations that we’ve caused in river flows by damming and diverting rivers far exceeds the impacts of climate change,” said Eloise Kendy, who recently retired as a senior freshwater scientist at The Nature Conservancy. “But I think climate change is catching up. The combination is just killing them.”
Court losses, wildfires drive agency inaction
The Forest Service tried and failed for decades to stake a legal claim to water on forest land.
The agency’s court losses were related to federal reserved water rights – water rights held by the federal government that are meant to keep water in streams. The logic of federal reserved rights is that, when national forests were created, those land reservations also included the right for the Forest Service to use water on the land to carry out its agency’s mission. And “securing favorable conditions of water flows” is part of the agency’s mission.
But the Forest Service has repeatedly lost ground on that point. Western states have successfully argued in state water courts and the U.S. Supreme Court that water rights should be a matter of state jurisdiction, and the rulings have chipped away at the Forest Service’s grounds for claiming its own water rights.
In a 1990 case in Colorado water court, the State of Colorado and many others objected to the Forest Service’s pursuit of federal reserved rights on the Platte River. They argued, in part, that the agency didn’t need its own water rights because it already had the perfect tool for oversight of water use on forest land: The special use permit, a “broad federal regulatory power.”
That argument seemed to resonate with the late Judge Robert Behrman, who ruled that the Forest Service could adequately protect streamflows through its administrative powers without reserving significant amounts of water in streams.
The Forest Service reportedly wanted to appeal Behrman’s decision, but the U.S. Department of Justice was “reluctant to risk another big loss,” wrote G. Emlen Hall in a Natural Resources Journal article.
The agency soon after spent millions of dollars trying to stake a claim to flow rights on the Snake River in Idaho, but it lost the case. The Forest Service hasn’t been actively engaged in litigation at the same scale since then, said Lois Witte, former water team lead for the U.S. Department of Agriculture’s office of general counsel.
“The energy and momentum for this approach waned,” she said. “There was not a lot of money for these big cases given the less-than-successful outcomes, limited resources and other priorities.”
In practice, the special use permits are not the “broad federal regulatory power” that they were branded in the 1990 water court case. Several former Forest Service employees said permit renewals are rubber-stamped, or expired permits simply languish, unless the associated project is of exceptionally high profile.
Gary Shellhorn, a retired Forest Service hydrologist in Colorado, couldn’t recall a single water permit renewal come across his desk during his 12-year tenure with the agency.
At the heart of the Forest Service’s limited water oversight is the issue of divided jurisdiction: A federal permit gives its holder permission to build the structure that conveys or impounds water on forest land, but in the West, state governments administer the rights for using the water that flows through the structure.
Water has worked this way in the West longer than the Forest Service has existed. So, regardless of the Forest Service’s legal oath to protect water, the agency continually finds itself on the sidelines of water issues — whether as a result of court losses, pressure from states and water users, or the agency’s own inertia.
Many water rights and water diversion structures predate the existence of national forests and the governing statutes that expanded the agency’s oversight of water, said Trout Unlimited Colorado director David Nickum.
“It wasn’t really seen as part of the Forest Service’s charge to adopt those kinds of protections until those new laws came in place,” he said, “and unfortunately, that means there’s a lot of places where there were permanent easements granted for projects that are having pretty substantial impacts on streams, right up to and including drying them up.”
Permanent Ditch Bill authorizations, in particular, pose an obstacle for any Forest Service effort to temper water diversions. Congress passed legislation known as the “Ditch Bill” in 1986 after farmers and ranchers balked at the prospect of federal limits on water use. The act required permanent authorizations of agricultural and livestock water systems that have been on forests since 1976 or earlier, effectively hamstringing Forest Service oversight of some of the oldest and most water-intensive diversions on national forest land.
The permits provide the Forest Service no avenue for review or regulation. They’re also contingent on the requirement that the permit-holder makes no major changes to the structure, an inherent disincentive to making efficiency upgrades to systems that are now at least 45 years old.
The Ditch Bill passed more than 35 years ago, but the Forest Service continues to issue new authorizations under its authority. The agency is still going through hundreds of applications for permanent authorization.
The Forest Service does have one clear way to flex its regulatory muscle in a special use permit. It’s called a bypass flow requirement, and few other measures have inspired such sustained controversy for the agency.
The Forest Service’s quintessential tool to keep water in rivers, bypass flow requirements mandate that water users allow a certain amount of water to bypass their diversion. They’re meant to maintain a minimum flow in the stream during dry periods. The Forest Service can require bypass flows on new permits or permit renewals.
Let’s say you have a water right to draw 5 cubic feet per second off a river, but your permit requires a bypass flow of 5 cfs. It’s a hot, dry day in late summer and the stream is flowing at 6 cfs. The bypass flow requirement means you are only allowed to take 1 cfs.
Some water users view bypass flow requirements as illegal takings. The issue inspired the formation of a congressional committee, numerous pieces of federal and state legislation, and a lawsuit that languished in the court system for more than 20 years.
The last word in that suit ultimately supported the Forest Service’s authority to issue bypass flow requirements. Despite the controversy, the Forest Service invokes this power so rarely that a federal task force estimated only 15 existed as of 1997. The Forest Service could not provide reporters with a list of permits that include that condition, though sources familiar with the agency’s watershed work say it has since become more common.
Where bypass flows are in effect, they are often ineffective from a conservation standpoint, said Julie Nania, water program director for Colorado-based High Country Conservation Advocates. The agency also doesn’t systematically monitor them for compliance.
One example of a bypass flow requirement is linked to snow-making operations for Crested Butte Mountain Resort, a ski resort in western Colorado. The resort pulls water from a tributary of the Gunnison River in the Gunnison National Forest primarily in November and December. Most of the snowmelt makes it back to the watershed, but the resort takes the water at a time when river flows are especially low and the diversion could dry up the stream and threaten fish and other river-dwellers.
After years of back-and-forth in water court, the Forest Service and the resort agreed to let at least 6 to 7 cfs of water bypass the snowmaking diversion.
But sources familiar with the agencyresort agreement said the Forest Service doesn’t regularly monitor the diversion for compliance, hampered by a lack of nearby stream gauges and the river’s tendency to ice over in cooler months. The resort, according to documents obtained by the USA TODAY Network, uses streamflow data from a gauge 20 miles downstream to determine whether it’s complying with the bypass flow requirement.
That data still indicates the resort doesn’t always meet the bypass flow requirement, and locals suspect the resort has a track record of drying the stream.
Forest Service representatives wouldn’t answer a reporter’s question about monitoring but said the bypass flow requirement “is an element of the water right decreed by the water court” rather than a condition of the permit. A spokesman for the resort declined interview requests and refused to answer written questions.
“We carefully monitor our water diversions from the East River for compliance with all flow requirements,” read the resort’s statement in part.
Water takes a backseat as fire takes hold
On the Grand Mesa and elsewhere, the Forest Service has proposed solutions to the complex legal and environmental challenges that stand in the way of water conservation. But as wildfire has demanded a greater cut of the agency’s attention and resources, such efforts have taken a backseat.
One effort on the Grand Mesa, Uncompahgre and Gunnison National Forests, the Pathfinder Project, showcases potential solutions while illustrating how agency inertia can stunt meaningful conservation work.
Shellhorn and John Almy, former hydrologists for the GMUG Forests led the five-year project that brought together the Forest Service, the state of Colorado, farmers, environmentalists and others to come up with ways to protect streamflows on national forest lands. As the most densely permitted forest in the nation, the GMUG was a natural fit for the pilot program initiated by Forest Service headquarters.
The Pathfinder steering committee included staff from the Forest Service, state and local agencies, environmentalists, farmers and more. It developed a list of 29 ways to protect streamflows on forest land, published in a 2004 report. Among the tactics:
Update the Forest Service’s inventory of water rights, uses and permits.
Compensate for lower flows with channel and fish habitat improvements.
Coordinate reservoir releases to bolster streamflows.
Require some water to bypass the diversion structure, a concept known as a “bypass flow requirement.”
Use eminent domain to acquire water rights for instream flows.
The final Pathfinder report emphasized that those latter two strategies were “last resort” methods, and state representatives made it clear that Colorado would likely object if the Forest Service took those measures, Shellhorn said.
Shellhorn and his colleagues used the Pathfinder approach on a few different forest water developments, and its strategies got a shoutout in the state’s memorandum of understanding with the Forest Service in 2004.
But a coinciding forest plan revision petered out, and eventually, all the people at the agency involved with the project left. With the strategies never codified and no one at the forest office to advocate for them, Pathfinder lost steam.
In the most recent draft of the GMUG forest plan revision released this summer, the Pathfinder Project isn’t mentioned.
“Once I retired, no one ever once called me and said, ‘Hey, Gary, kind of fill us in on this project,’” Shellhorn said. “So you kind of go, ‘Well, my time is done.’ They’re on their own. They choose to be that way.”
Pathfinder’s failure shows that, absent an agencywide reshuffling of values, it may take pressure from the outside to spur Forest Service action on water, Almy said.
“If the right environment exists to allow pursuing some of these kinds of efforts, then people like myself will take the bull by the horns and do what we can,” he said. “But if the environment is not really putting any emphasis on doing that, then it’ll just wither.”
Former Forest Service employees and sources familiar with the agency’s approach to water said the lack of oversight really comes down to politics and staffing.
“Political support … ultimately dictates what they do,” Almy said.
The agency’s inherent bent toward extraction of resources is another obstacle to conservation. The Forest Service, after all, is a division not of the Department of the Interior but of the Department of Agriculture. Timber production is rooted right alongside water in the agency’s defining legislation, and “multiple use, sustained yield” remains
a sort of unofficial slogan.
Compare the approach to that of the National Park Service, which has had considerably better luck than the Forest Service in advocating for federal reserved water rights and protecting natural resources on agency lands.
“The park service has a preservation mandate,” said Andy Stahl, a former Forest Service employee and director of Forest Service Employees for Environmental Ethics. “The tension for the National Park Service is, how do you manage the people so that the park is not overrun? The Forest Service is all about use.”
And, increasingly for decades, it is all about fire.
In 2005, the Forest Service already budgeted five times more funding for managing wildland fire and hazardous fuels than for managing water, plants and wildlife. By 2020, the difference increased to ninefold.
Meanwhile, staffing for watershed and wildlife work has declined as staffing for fire has increased. More than 40% of the agency’s staffing is now devoted to fire, compared to less than 7% for water and wildlife.
Former employees said wildfire has consumed the agency’s staffing and funding.
“If you need money for fire, take it from someone else,” Shellhorn said, describing the mentality he witnessed during his time with the agency. “… The agency’s spending way too much money on fire, in my opinion. And that’s come at the expense of resource management.”
Agricultural water users, for their part, said they’d prefer if the Forest Service was less involved with water issues. Many agricultural producers in drought-stricken areas are using less water as it is, culling their herds and fallowing fields in the face of water shortages. They said the notion of new bypass flow requirements or rejected water permits would present even more obstacles to their livelihood.
“Usually when regulators get involved it ends up not being helpful,” said Carlyle Currier, a rancher and president of the Colorado Farm Bureau.
Irrigators and water managers on Colorado’s West Slope, which has been in some stage of drought for two years, described the Forest Service permitting process for reservoir construction and renovations as excessively arduous.
Federal involvement in West Slope water issues often seems misguided, said Austin Keiser, president of Grand Mesa Water Conservancy District. He’s skeptical of widespread water efficiency upgrades because they could run the risk of depleting groundwater.
It’s possible to conserve water or increase efficiency without sacrificing groundwater or producers’ income, said representatives of groups like The Nature Conservancy and Trout Unlimited that work with irrigators on watershed improvements. They emphasized the need for a collaborative approach that focuses on problem areas, like dry spots on creeks or areas where river ecosystems are suffering, and seeks buy-in from water users.
The agency could also get involved with regenerative agriculture efforts to recover damaged soils and improve runoff efficiency in its watersheds, conservationists suggested. Another option could be a demand management strategy where the Forest Service could offer payments or other incentives to water users for reducing their use.
Regardless of strategy, the Forest Service can’t make headway on water without devoting adequate staffing and attention to the issue, said Horning, the WildEarth Guardians executive director. He suggested the agency start by monitoring forest water use and allocating more staff for watershed management.
“It just requires someone who cares and who is committed to thinking about, how are we going to manage this system at a time of tremendous change and uncertainty?” Horning said. “... That’s leadership. That’s what the agency should be doing instead of being asleep at the wheel.”
The small band of conservationists committed to the cause of forest water preservation wonder what it will take for the agency’s water strategy to meet the urgency of this moment. Forest water diversions have “been an orphan issue literally for three decades,” said Laura Ziemer, senior counsel and water policy adviser for Trout Unlimited.
“Those of us who have been engaged in these issues have been warning that there will come a day when even on the national forest, there is not enough water,” she said. “And that day has come.”