Future Lower Dolores management topic of meeting

May 9, 2015
David Robbins photo via Hill and Robbins P.C.

David Robbins photo via Hill and Robbins P.C.

From the Cortez Journal (Jim Mimiaga):

Forty agriculture and political leaders and Robbins met Tuesday about issues on the Lower Dolores River that have made for rough water lately.

Forest Service and mostly BLM land below the dam are being considered for additional federal protection, including designating separate areas as the Dolores Canyon Wilderness Area and Dolores River National Conservation Area. The proposal in the form of a draft bill was released last month.

Feds control river

Other preservation measures are also on the horizon.

Struggling native fish in the shallows of the Lower Dolores could be listed under the Endangered Species list, which would trigger federal action. Sections of the river are poised to become a National Wild and Scenic River if Congress so desires. Or the area could be named a National Monument by President Barack Obama.

Local ag officials and water managers want to know how each of these scenarios could impact rights to water stored in McPhee Reservoir.

“A legal review can tell us what we are doing wrong, what we’re doing right, or if we should even do anything,” said Dolores County Commissioner Ernie Williams. “I believe some kind of action is needed to protect Dolores and Montezuma County water.”

Agriculture and water interests in Dolores and Montezuma County are negotiating with Robbins to conduct a legal analysis.

One key message is that agencies including the BLM, Forest Service, U.S. Fish and Wildlife, and the Bureau of Reclamation are mandated by Congress on how to manage lands.

Agencies have discretionary power on how to carry out Congressional direction. But limiting that power is possible through the carefully crafted laws drafted at the local level.

“We get mad at local fed officials for implementing laws we don’t agree with, but after all it is Congress who told them what the standards are they need to follow,” Robbins said. “I encourage all of you to find ways to pass a law that constrains the otherwise open discretion of federal officials to manage the federal lands and water running through them.”

Implied water rights

There has been much speculation on which special federal designation — a monument, an NCA, a Wilderness Area, a Wild and Scenic River, or an ESA listing for native fish, could force more water out of McPhee Reservoir.

According to Robbins, they all could, unless federal legislation passes that prohibits it for an area.

“Whenever the government reserves land for a purpose, there is potential for reserving sufficient water to fulfill that purpose whether or not water is mentioned in the withdrawal,” he said.

A Wild and Scenic River designation typically comes with a federally reserved water right.

A 108-mile section of the Dolores from McPhee Dam to Bedrock is considered “suitable” for Wild and Scenic. A draft NCA bill proposes to drop the suitability status as a compromise for prohibiting new dams or mining.

If one of the struggling native fish on the Dolores River is listed under the Endangered Species list, it triggers a recovery plan that could force more water downstream.

Another perplexing issue: Sections of the Dolores below a proposed NCA from the Bradfield Bridge to Bedrock are also eligible for Wild and Scenic. If they became designated, would McPhee Reservoir continue to a target for additional water?

Robbins has been successful drafting legislation on Sand Dunes National Park and the Rio Grande River that protects agricultural water rights along with native fish.

He said he’s willing to research the issues regarding the Lower Dolores River, and is expected to submit a bid for a review. A public meeting is planned once it is completed.

More Dolores River watershed coverage here and here.


Dolores River Restoration Partnership annual report

May 9, 2015


From Telluride Daily Planet (Stephen Elliott):

In a presentation to the San Miguel County Board of Commissioners at their meeting Wednesday, Nature Conservancy Southwest Colorado Project Director Peter Mueller updated the board on the work of the Dolores River Restoration Partnership, a private-public partnership that works to preserve the wildlife and ecology of the river that starts in the San Juan Mountains and runs to its confluence with the Colorado River near Moab…

In 2014, according to Mueller, the DRRP developed and approved a transition plan for long-term monitoring and maintenance of the river, which sets forth strategies for fundraising, communications, governance and physical conservation work needed to support the diversity and health of the Dolores River’s riparian corridor for the next five years.

The DRRP works to preserve the habitat surrounding the Dolores River, and it has done well at that in the six years since it started implementing its ecological goals. But that’s not all DRRP wants to accomplish, Mueller said…

A significant part of DRRP’s workforce comes from Conservation Corps crews, which are made up of young adults typically aged 18 to 24, “consistent with out commitment to the next generation of stewards,” according to the DRRP’s 2014 annual report.

In 2014, 49 members of those teams contributed a combined 13,400 hours of work restoring the Dolores River, including an average of 130 hours per person of training…

In addition to ecological and social goals, the DRRP 2014 annual report outlines the economic impact the partnership had on the local community. According to the report, the total amount of money that went into the local economy because of the group’s expenditures, job creation and partnerships was $1,182,800.

The Colorado Nonprofit Association awarded the DRRP the 2014 Colorado Collaboration Award at a ceremony in October, a state-wide award that goes to an organization that exemplifies collaboration between many different entities, and it comes with a $50,000 prize, which the DRRP says will be used to “support long-term stewardship of the Dolores River.”

At the time, Colorado Nonprofit Association President and CEO Renny Fagan applauded the DRRP for its success at bringing different groups together to work toward a common goal.

“The Dolores River Restoration Partnership is an outstanding example of how nonprofits, businesses and government agencies are working together,” Fagan said. “Collaborating isn’t always easy. It takes a lot of work and commitment, but when we get together and identify our common goals, we can accomplish remarkable things.”

More Dolores River watershed coverage here.


Cortez plans to install 3,000 smart water meters this summer

April 21, 2015
Wireless meter reading explained

Wireless meter reading explained

From The Cortez Journal (Jessica Gonzalez):

Funding is in place for the City of Cortez to embark on a $1.2 million replacement of more than 3,000 manually read water meters with automated meters.

Mayor Karen Sheek and City Council approved loan and grant funds from the Colorado Water Conservation Board at the April 14 council meeting.

Through this project, the city intends to replace its current meters with automated meter readers, which use radios to collect data via a drive-by or a fixed-base receiver on every metered account in the city’s system.

The project is being funded through $250,000 in grants from the CWCB and the Department of Local Affairs, $350,000 from the city’s fund balance and $850,000 loan from the CWCB. Once bids are opened in mid-May, there will be a more precise picture of exactly how much the city will need to borrow via loan funding, said Phil Johnson, director of Public Works. It’s likely to be less than the $850,000 total…

The Public Works Department contends that the replacement project will bring the water meter system into the future with more streamlined billing and data management. It also says that it encourages conservation by providing users with more accurate water-consumption information…

After the bid period in mid-May, work is expected to begin early summer. The entire system is expected to be on automatic meters by October…

The Public Works Department will be providing regular updates on the project on the City of Cortez website, he noted, but stressed that it’s a necessary change in a time where water conservation is crucial.

“It’s a step into the future going to help us run our operation more effectively and it’s an efficient tool to help Cortez save water,” he said.

More infrastructure coverage here.


Colorado Supreme Court upholds San Miguel River instream flows — Telluride Daily Planet

April 15, 2015

From the Telluride Daily Planet (Mary Slosson):

The CWCB initially decided in 2011 to protect a 17-mile stretch of the San Miguel River stretching from Calamity Draw down to the confluence with the Dolores River in order to prevent water levels from dropping too low for three fish species — the flannelmouth sucker, bluehead sucker and the roundtail chub — to survive and thrive.

All three are classified by the U.S. Forest Service Rocky Mountain Division as sensitive species, with human water diversion listed as the main reason for their precarious situation.

“Fundamentally what this case is about is that environmental water rights are going to be treated just the same as other water rights,” said Rob Harris, a staff attorney for conservation group Western Resource Advocates, which filed a supporting brief in the case.

“It’s a model for the West to follow on how to provide that local voice while also creating concrete, substantive protections that keep water in rivers for generations to come,” Harris continued…

Officials at the Bureau of Land Management and the Colorado Department of Wildlife requested the instream flow protections in 2008. A district water board upheld the 2011 CWCB vote and that was that, until the Farmers Water Development Company objected. The group said that the CWCB’s actions were quasi-judicial in practice and in violation of the Constitution.

The Colorado Supreme Court disagreed and, in a decision authored by Justice Allison H. Eid, upheld the water board decision by affirming that the CWCB was acting in a quasi-legislative capacity granted it by the state legislature.

“We’re very, very pleased with the ruling,” said Linda Bassi, the chief of the CWCB Stream and Lake Protection Section. “It was an important decision for our agency.”

State lawmakers empowered the CWCB in 1973 to use instream flow water rights to protect the environment of streams, rivers and lakes in order to assist imperiled fish and other species and to protect nearby vegetation.

“It’s a big deal for us because the court affirmed that the process my board uses is correct,” Bassi added. “It strengthens our whole program.”

The Colorado high court’s ruling is particularly important for the board in 2015, as several of its proposed instream flow protections have already been challenged. One of the sections in question is along the Dolores River in Montrose and Mesa Counties.

More San Miguel River watershed coverage here.


San Miguel
 water rights 
are upheld
 — The Grand Junction Daily Sentinel

April 9, 2015

From The Grand Junction Daily Sentinel (Dennis Webb):

A Colorado Supreme Court ruling this week that upheld an instream flow water right in the San Miguel River in Montrose County also is being praised as an important one for the state’s instream flow program as a whole.

The court Monday ruled in favor of the Colorado Water Conservation Board in connection with its process for pursuing the water right for a 17-mile reach of the river. The board sought the right at the urging of the U.S. Bureau of Land Management and what is now Colorado Parks and Wildlife to preserve habitat for three sensitive fish species — the flannelmouth sucker, bluehead sucker and roundtail chub — and for “globally imperiled riparian communities.” A water court approved an instream flow protection of up to 325 cubic feet per second.

The Farmers Water Development Company had argued to the Supreme Court that the 
CWCB’s action was quasi-judicial, and as a result its notice and comment period failed to follow procedural due process. The high court found instead that the instream flow process is a quasi-legislative one that “concerns the rights of the people of Colorado, with a prospective policy focus on protecting the environment.”

The court’s opinion, written by Justice Allison H. Eid, said the legislature vested the CWCB with the exclusive authority to appropriate instream flows on behalf of state residents, and such an action is a policy determination within the agency’s discretion. The opinion also pointed out that the agency doesn’t decree instream flow rights, but decides whether to seek such a right from water court.

The Western Resource Advocates conservation group, which was a party to the case, called the ruling a landmark decision that will have a bearing on other instream flow applications by the CWCB.

“This is more than just a technicality. It’s about the very nature and strength of the instream flow program,” said WRA staff attorney Rob Harris.

CWCB director James Eklund said the decision affirms the agency’s instream flow program process. Had the court determined that the process is quasi-judicial, the agency would have to follow rigidly spelled-out proceedings involving legal pleadings and procedures, rather than its current system involving a hearing process involving a board, he said.

“Our board gets to ask the kind of questions they want to ask. There’s not as much in the way of getting them to the meat of the issue,” Eklund said. A quasi-judicial process would be more difficult for the agency to follow, he said.

Christopher Cummins, the attorney representing Farmers Water Development Co., could not be reached for comment.

Eklund said the ruling is important because the instream flow program “is the most robust tool that we have as a state to protect streamflows for the environment.”

“It does double duty for us,” he said, because it also protects flows at the state or local level, as opposed to the federal government doing so through Wild and Scenic River designations.

Western Resource Advocates said that, if not for instream flow protections, the fish to be protected in the San Miguel River might require protection under the Endangered Species Act.

Instream flow rights are nonconsumptive, aimed at maintaining minimum flows between points on a stream, or certain levels in natural lakes. According to the 
CWCB, since 1973 it has appropriated instream rights on more than 1,500 stream segments covering more than 8,500 miles of stream, and 477 lakes.

Eklund said the court ruling provides certainty to everyone involved in the instream flow rights process, including opponents to proposals. “You want to know the rules of the game when you get into it and this opinion helps provide some clarity on that,” he said.

Harris said the ruling will have some bearing on some big fights coming up this year on instream flow proposals, including one that ExxonMobil is challenging involving Yellow Creek in Rio Blanco County.

He noted that when it comes to allocation of water, instream flow rights are junior to rights already in existence before they were decreed. But he said some entities are seeking “carve-outs” that would give priority over instream rights to other water uses that haven’t even been come up with yet, and he objects to making instream rights second-class rights.

“Water rights for instream flows, they deserve a seat at the table like any other water right,” he said.

More water law coverage here.


Colorado Supreme Court ruling bolsters stream protection

April 9, 2015

Originally posted on Summit County Citizens Voice:

The San Miguel River near its headwaters in Telluride, Colorado. @bberwyn photo. The San Miguel River near its headwaters in Telluride, Colorado. @bberwyn photo.

Challenge to instream flow rejected by state’s top judges

By Bob Berwyn

FRISCO — The Colorado Supreme Court this week rejected a legal challenge to a state program designed to protect rivers and streams.

The ruling makes it clear that the Colorado Water Conservation Board’s instream flow program furthers state policy of preserving the natural environment for the people of Colorado.

At issue is in the case is an instream flow right in the wild and remote San Miguel River, flowing out of the high San Juans near Telluride to its confluence with the Dolores River in Montrose County. The San Miguel is one of the last relatively free-flowing rivers in Colorado. As such, water experts say it still has some water that could be developed in the future. The instream flow right will help ensure that…

View original 778 more words


Landmark Legal Decision Protects Rivers and Instream Flows — Western Resource Advocates

April 7, 2015

From Western Resource Advocates (Rob Harris/Joan Clayburgh):

Today the Colorado Supreme Court rendered a landmark decision upholding the “instream” water right for the breathtaking San Miguel River.

The court deemed that a senior water rights holder, Farmers Water Development Company, is unaffected by the State of Colorado’s instream water rights on the San Miguel river and affirms that state water rights are a legitimate and essential tool to protect Colorado’s fish and wildlife.

“We’re ecstatic that the Colorado Supreme Court upheld permanent protection for this scenic river in Colorado’s Red Rock Canyon country,” said Rob Harris, Staff Attorney at Western Resource Advocates (WRA) and WRA’s lead defender before the Supreme Court. “Healthy rivers are important for wildlife and recreation. This case will long be remembered for preserving healthy rivers throughout Colorado as a legacy for future generations. Fishermen, boaters, and wildlife need these sorts of instream water right protections secure water for their needs.”

In 2013, the Water Court in Montrose ruled in favor of the Colorado Water Conservation Board’s application for “instream flow” protection that permanently safeguards water flowing in the San Miguel River for fish. This will also benefit recreational users. The San Miguel River is one of the last relatively free-flowing rivers in Colorado. The Water Court approved an instream flow protection of up to 325 cubic feet per second, enough to support the vulnerable native fish in the San Miguel.

Farmers Water Development Company challenged this decision, claiming their water right would be negatively impacted, which today the Supreme Court found to be incorrect.

“We are proud of the part we’ve played legally defending this instream flow water right,” said Rob Harris. “We believe this ruling not only protects the distinctive San Miguel, but ensures we have a vital tool to leave a legacy of healthy rivers throughout Colorado. We thank the Colorado Water Conservation Board, Colorado Parks and Wildlife, the Bureau of Land Management and our tireless partners in the conservation community who helped make today’s victory possible.”

The San Miguel River is unique, rising in the San Juan Mountains southeast of Telluride and flowing through San Miguel and Norwood canyons, then past Placerville and Nucla – joining the Dolores River in Montrose County. This river is renowned for exciting whitewater boating and tremendous trout fishing.

This visually stunning river flows through Colorado’s red sandstone canyon country and is also home to three native fish that are struggling to survive.

Without dedicated instream flows in the San Miguel and elsewhere, these fish could require protective action under the federal Endangered Species Act. Colorado’s Instream Flow Program allows for a fair, collaborative process where local stakeholders have a voice in protecting Colorado’s rivers and streams, and the San Miguel water rights reflect that approach.

Instream water rights help keep water in a river or lake. The rights dedicate minimum water flows between specific points to preserve or improve the natural environment. These can be used to protect fisheries, waterfowl, frogs/salamanders, unique geologic or hydrologic features and habitat for threatened or endangered fish. The rights can be monitored and enforced, thereby insuring long-term protections.

The legal challenge by Farmers Water Development Company would have threatened the continued vitality of Colorado’s Instream Flow Program, and today’s decision allows all current and future in- stream flow protection efforts to continue.

More San Miguel watershed coverage here and here.


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