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

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.

San Miguel River: Restoration project will reverse channelization

Photo via TellurideValleyFloor.org
Photo via TellurideValleyFloor.org

From The Telluride Daily Planet:

One of the biggest human impacts on the Valley Floor was the channelization of the once-meandering San Miguel River approximately 125 years ago, pushing the waterway into an unnatural straight line on the western edge of the valley. That crime against nature could be reversed in a $1.6 million plan presented to Telluride Town Council on Tuesday.

The ambitious engineering project would focus on a section of the river from the sewer lagoons near Entrada to Boomerang Road, restoring the flow to the historic route of the river — a pathway that can be seen in old photographs and is hinted at in the current topography of the 570-acre green space.

“What we’re doing in this situation is we’re actually moving the flow path of the San Miguel River,” said Dave Blauch, a senior ecologist for Ecological Resource Consultants, Inc., a group that is assisting in the river restoration project. “The concept has been to pull it out on the Valley Floor to function more naturally.”

Blauch told council members of the many environmental benefits that the project would create: the restoration of approximately 5,000 linear feet of aquatic and riparian habitat, the elimination of a highly unnatural water channel, the restoration of natural flood cycles and the improvement of the natural habitat.

The new — but really quite old — river channel would be cut with excavation equipment and the project would be a disruptive sight to see on the protected land while underway.

Hilary Cooper, a member of the committee focused on the river restoration project, told council members that the benefits of the project would far outweigh one season of construction disruption.

More San Miguel River watershed coverage here.

Durango: 33rd Southwestern Water Conservation District’s (SWWCD) Annual Water Seminar, Friday, April 3

Durango
Durango

From the Pagosa Springs Sun (Renita Freeman):

Water experts will speak at the 33rd Southwestern Water Conservation District’s (SWWCD) Annual Water Seminar at the Doubletree Hotel in Durango on Friday, April 3, from 8:30 a.m. to 4:30 p.m.

This year’s theme is “New Solutions to Old Problems.” A broad range of topics on the agenda will be addressed during the meeting including the Colorado River basin contingency planning efforts, the future of agriculture in Colorado, the state water plan and the incorporation of water conservation in land use planning.

The meeting’s agenda, as listed in a news release from SWWCD, has registration and breakfast scheduled to begin at 8 a.m. Welcoming remarks and introductions will be made by John Porter, SWWCD board president, and Bruce Whitehead, executive director.

The morning’s presentations will feature Jim Havey with Havey Productions presenting a documentary on the Great Divide. Moderator Steve Harris will present Exploring Water Conservation Strategies. Assisting in this presentation will be state Sen. Ellen Roberts, Drew Beckwith with Western Resource Advocates, Dominique Gomez with Water Smart Software and Mark Marlowe from the Town of Castle Rock.

Whitehead will speak on the Colorado River Planning Convergence; he will be assisted by Greg Walch from the Southern Nevada Water Authority and Colorado Water Conservation Board (CWCB) members Ted Kowalski and Eric Kuhn.

The afternoon’s agenda will begin with recognition of the water leaders followed by the film “Resilient: Soil, Water and the New Stewards of the American West” presented by Kate Greenberg from the National Young Farmers Coalition. Greenberg will also present Agriculture’s Future in the Colorado River Basin. Assisting with this presentation will be Ken Nowak from the U.S. Bureau of Reclamation and Pat O’Toole, a local producer from the Family Farm Alliance.

“The State Water Plan: Meeting Local Water Needs” will be presented by John Stulp from the Interbasin Compact Committee. Assisting Stulp will be CWCB board member Rebecca Mitchell. Carrie Lile, Ann Oliver and Mike Preston from the Southwest Basin Roundtable will also take part in the presentation.

The press release stated advance registration is $35 or $40 at the door. Online registration is available by going to http://swwcd.org/programs/annual-water-seminar. Mail-in registration forms are also available on the website. The Doubletree Hotel is located at 501 Camino del Rio. Registration will begin 8 a.m. on April 3.

More education coverage here.

A look at the current southwestern Colorado #drought #ColoradoRiver

Colorado Drought Monitor February 24, 2015
Colorado Drought Monitor February 24, 2015

From The Durango Herald (Mary Shinn):

Years of drought and overgrazing have dried out the fields in southwestern La Plata County. Dust easily blows away in the wind.

Last year, from March until May, dust storms caused problems for students, drivers and farmers, and without enough precipitation, the dirty storms could return…

The area from Breen into New Mexico and west of Black Ridge to the La Plata County line was hit hard last year by dust, said Sterling Moss, district conservationist for the Natural Resources Conservation Service office in Durango.

The recent snowfall earlier this week dumped about a foot of snow near Breen and Kline, and more snow is expected to accumulate this weekend.

“This is a huge blessing, but we are still way far from being out of the woods,” said Trent Taylor, owner of Blue Horizons Farm Inc.

The entire river basin, which includes the Dolores, Animas, San Juan and San Miguel rivers, would need to receive 218 percent of historical snowfall to get back on track, said Bruce Whitehead, executive director of the Southwestern Water Conservation District.

“I don’t think we’ll make it to normal snowpack this year,” he said.

A long dry spell in January and February left local conservationists and farmers nervous. In mid-February, Moss dug down to test soil moisture as wind dried the field of winter wheat all around him.

In southwestern La Plata County, snow should have blanketed the field near County Road 119 for weeks. But instead, Moss didn’t even find enough moisture in the soil to support the wheat through harvest.

“I’ve never seen a February like that,” Taylor said.

The newly fallen snow could ease the situation. If it melts slowly, it can soak deeper into the soil than rain does.

But re-establishing healthy fields is key to preventing dust storms through the spring winds.

Moss and his office have been working with landowners to plant grass in areas dedicated to conservation reserves to keep the top soil from blowing away. These areas are dedicated to wildlife habitat, and landowners receive a government subsidy for not working the land. This helps farmers survive in the worst drought years, Taylor said.

But it has been challenging.

“A lot of grass has been planted that hasn’t been established yet,” Moss said.

The stands of grass are key to keeping valuable topsoil in place. An inch of topsoil can take 100 years to accumulate, he said.

But without precipitation at the right time, the grasses won’t grow. This year, Moss might recommend planting grass or another cover crop in mid-summer in hopes the monsoons will come.

In the past few years, fall rains have brought most of the moisture for the year.

Leaving the stems from last year’s crop in place also can prevent wind and rain erosion and keep the soil cooler, said Abdel Berrada, a soil scientist with Colorado State University.

This stubble helps conserve soil, but it also provides habitat for pests, like cut worms that may require herbicide, Taylor said.

Planting trees as wind breaks or setting up snow fences can help keep the dust down. But trees can’t thrive when there’s very little water…

“Growing plants on bare bones soil with little to no water can be an uphill challenge,” said Darrin Parmenter, county extension agent for Colorado State University.

San Miguel, Dolores, Animas, and San Juan Basin High/Low Graph February 25, 2015 via the NRCS
San Miguel, Dolores, Animas, and San Juan Basin High/Low Graph February 25, 2015 via the NRCS

Norwood: Lawn and garden irrigation project awaits CWCB funds for feasibility study

Lone Cone from Norwood
Lone Cone from Norwood

From The Norwood Post (Regan Tuttle):

At February’s Norwood town board meeting, trustees discussed the Colorado Water Conservation Board’s upcoming decision on a grant award that Norwood recently applied for. The funding would make possible a feasibility study that will determine whether or not Norwood should move forward with a lawn and garden raw water irrigation project, similar to that of Dove Creek.

Last month, town officials met with those of Dove Creek to learn the details of the project.

Town Administrator Patti Grafmyer said that receiving the grant would not mean that the irrigation project will automatically move forward.

“Norwood can evaluate the feasibility study,” she said. “We are just asking for the funding, but once that has happened, there will be a scope of work that will have to be signed with the town board.”

CWCB members will make the decision this March.

More San Miguel River watershed coverage here.

Montezuma County, et al., come out against a National Conservation Area — Lower Dolores River

From the Cortez Journal (Jim Mimiaga):

The Montezuma County commission and San Juan Basin Farm Bureau have publicly come out against a fledgling proposal to create a National Conservation Area on the Lower Dolores River.

Citing concerns that the designation could result in additional water being released downstream from McPhee Reservoir, the commissioners voted 3-0 to oppose any such plan…

But others involved said it is too early to take sides because the bill is still in a draft form and has not been released to the public yet.

“I think there is some misunderstanding of the intent of the NCA,” said Al Heaton, also a member of a legislative committee. “Once it’s out, there will be significant time for the public to read the draft and weigh in on it. It’s good to air it out, because there’s room for discussion, clarification and negotiation.”

The Lower Dolores Plan Working Group has been researching legislation for an NCA on the Lower Dolores River below McPhee dam since 2010. A draft is near completion and is expected to be available for review in the coming weeks.

At Monday’s commissioner meeting, Suckla said a draft he saw was “disturbing.” He was critical of the balance of 15 organizations listed in a memorandum of agreement directing the NCA proposal.

“This list is so unfair as far as equal representation for citizens of the county,” he said. “As a commission, our job is to protect property and water rights in Montezuma County, and I only see five entities here that side with that. Where’s the mining interests, the farm bureau, the private landowner interests?”

A compromise

The Lower Dolores Working group, representing various stakeholders, has been studying the environmental and commercial needs of the river below the dam for over a decade.

One conclusion reached was that improving habitat for the native roundtail chub, bluehead sucker, and flannelmouth sucker on the Lower Dolores will help prevent them from being listed by the Endangered Species Act, federal intervention local officials want to avoid.

An NCA in the valley from below McPhee dam to the confluence with the San Miguel River was proposed because the designation is seen as a flexible management tool with more local control in finding negotiated solutions to problems.

As part of the deal, the section of Dolores River that runs through the proposed NCA would be stripped of its “suitability” status for a Wild and Scenic River, a highly protectionist federal designation. If Congress ever approved Wild and Scenic for the Dolores, it would likely come with a federally reserved water right, a situation opposed by local officials.

Proponents say an NCA is a good fit because it balances conservation with commercial uses, eliminates Wild and Scenic potential for that section of river, and offers more local control than, say, a national monument.

“The group reached consensus to pursue an NCA as a way to protect values in a way that doesn’t feel threatening to some stakeholders,” Amber Kelley, Dolores River coordinator for the San Juan Citizens Alliance, said in an earlier interview. “The decision to develop an NCA as an alternative to Wild and Scenic suitability entails a compromise for everyone involved. A grass roots proposal is a far better option than having something imposed from the outside.”

But at the commission meeting some were skeptical of the NCA plan, and urged that the area continue under BLM management.

“I believe there is another way to protect fish without an NCA,” Suckla said.

‘Unintended consequences’

In a letter, the local Farm Bureau outlined its opposition, saying an NCA threatened the region’s water resources managed by the Montezuma Valley Irrigation Company and the Dolores Water Conservancy District, which operates McPhee Reservoir.

“The proposal has conflicting requirements with respect to its description of water rights and could set the stage for serious litigation,” according to the letter. “Except for new storage, the only . . . water supply . . . is from either MVIC or DWCD. This legislative path would set up a community fight between MVIC shareholders and DWCD full-service farmers.”

The letter goes on to say that the NCA proposal “does not include a water right” but because of uncertainties in federal and state water law, an NCA may have “unintended consequences driven by political or judicial actions initiated by folks with interests different than our interests.”

“We must ask ourselves, ‘are we supporting actions that may expand the ability of those interests to use the legal process to acquire water we did not intend to be available for acquisition?’”

A crux of the issue is how to improve downstream flows to benefit native fish. State and federal fish biologists have long recommended increasing McPhee’s designated fish pool for release to the Lower Dolores to 36,500 acre-feet from it’s current allocation of 31,800 acre-feet. But where the additional 4,701 acre-feet will come from has been a long-running debate.

Farm Bureau spokesperson Linda Odell said the fear is that an NCA could force the Bureau of Reclamation to acquire the additional 4,701 acre-feet from existing users.

In a statement, Marsha Porter-Norton, a facilitator with the Lower Dolores Plan Working Group, urged the public to be take time to review the proposed legislation.

“This process has always been very open and responsive to concerns that have been brought forward,” she stated. “Everyone involved knows that any successful legislation requires community support. If there are adjustments to the proposal that can be made to ensure a comfort level on the part of water users, I believe the legislative subcommittee, which contains leaders from the water community, is open to discussing those ideas.”

More Dolores River coverage here.

Water Lines: Colorado Water Plan delivered, key dilemmas remain — Hannah Holm

From the Grand Junction Free Press (Hannah Holm):

Colorado lurched one more step towards resolving how to satisfy growing demands for water with stable-to-diminishing supplies when Governor Hickenlooper received the first complete draft of a statewide water plan on Dec. 10.

In compiling the plan, the Colorado Water Conservation Board (CWCB) provided the latest information on current and projected water supplies and defined some “no regrets” actions that would help no matter what the future holds. These include achieving at least low-to-medium levels of conservation, completing already planned projects, implementing water re-use projects, and preserving the option of taking more water out of the Colorado River and its tributaries to meet both West and East Slope needs.

The CWCB stopped short of endorsing (or vetoing) any particular projects to meet future needs or taking a hard stand on the role conservation and land-use restrictions should play in meeting future needs. The draft plan maps the landscape, but doesn’t define the route.

The identification of specific projects was left to roundtables of water providers and stakeholders in each of the state’s major river basins. As anticipated, those basin plans conflict on the issue of whether East Slope basins can continue to rely on additional West Slope water to meet their growing needs. Approximately 500,000 acre-feet per year already flows east across the Continental Divide through ditches and tunnels that siphon off a majority of the natural flows from many headwaters streams. One acre-foot can meet the needs of two to three households for a year under current usage rates.

Seven-point draft conceptual agreement framework for negotiations on a future transmountain diversion screen shot December 18, 2014 via Aspen Journalism
Seven-point draft conceptual agreement framework for negotiations on a future transmountain diversion screen shot December 18, 2014 via Aspen Journalism

While the draft plan doesn’t say “yes” or “no” to additional transmountain diversions, it does incorporate a seven-point “draft conceptual agreement” on how to negotiate on future transmountain diversions. The draft discussion framework (there’s been a lot of push back on calling it an agreement) contains several new features in the many-decades-long debate between East and West Slope actors over transmountain diversions. It states that the East Slope is not looking for stable water deliveries each year from any such project, recognizing that it may only be able to divert in wet years and would have to use transmountain water in conjunction with non-West Slope sources, such as the Denver Basin aquifer and temporary transfers from agriculture.

The draft framework also notes the need for an “insurance policy” to protect against Colorado water users getting cut off in the event that we fail to let enough water flow beyond the state line to meet downstream obligations. Colorado and the other Upper Colorado River Basin states have never failed to meet their obligation to downstream states under the 1922 Colorado River Compact, but the margin by which we’ve exceeded it keeps diminishing. Additional use in Colorado, Utah, Wyoming and New Mexico, plus continued drought, could push us over that threshold.

While the draft framework is a tiny part of the draft Colorado Water Plan, it’s likely to be at the center of debate between water leaders from each of the state’s major river basins as the draft Colorado Water Plan becomes “final” over the coming year. In a meeting Dec. 18, members of the four West Slope basin roundtables met in Grand Junction to work towards a common negotiating position in those discussions.

The four roundtables share extreme skepticism about the wisdom of any transmountain diversion, no matter the caveats; they also share a concern that any “insurance policy” to protect existing uses from curtailment under the 1922 Colorado River Compact would ultimately result in water being transferred out of West Slope agriculture, even if the transfer is voluntary and lower-impact than the wholesale “buying and drying” of agricultural water rights that has already devastated some East Slope farming communities.

Where the West Slope roundtables begin to diverge is over how additional Colorado River Basin development on the West Slope figures into the picture. Given that any new uses raise the risk of failing to meet downstream obligations, should new West Slope water projects be looked on any more favorably than new projects to send water across the Continental Divide? Where is the right line in the trade-off between protecting existing Colorado River water users and making the fullest use possible of the resource? And what place should “nonconsumptive” uses of water for the health of the environment and recreation play into these decisions?

This already complicated dilemma is made more complicated by the fact that the Yampa and White river basins have fewer dams and diversions on their streams than the other West Slope river basins, and therefore have a greater interest in new projects to provide greater security for existing users, as well potentially irrigate even more land and/or meet the needs of increasing energy development. Is the Yampa Basin bearing an unfair share of the burden of meeting downstream obligations, or would it be even more unfair for existing users in other basins to have to cut back in order to subsidize Yampa Basin growth?

In the quest to find common ground on this issue, participants in the Dec. 18 meeting called for better hydrologic data in order to better understand how much additional risk is created by different levels of additional use.

I don’t know if that’s possible, given the current state of scientific understanding of our region’s climate and hydrology, particularly when it comes to forecasting. What may bear fruit is the search for the right “triggers,” in terms of reservoir and/or streamflow levels, to indicate when more development, on either side of the Continental Divide, can proceed without posing unacceptable risks to the whole system. Don’t expect this dilemma to be resolved any time soon, no matter what deadlines exist on paper.

This is part of a series of articles coordinated by the Water Center at Colorado Mesa University in cooperation with the Colorado and Gunnison Basin Roundtables to raise awareness about water needs, uses and policies in our region. To learn more about the basin roundtables and statewide water planning, and to let the roundtables know what you think, go to http://www.coloradomesa.edu/WaterCenter. You can also find the Water Center on Facebook at http://Facebook.com/WaterCenter.CMU or Twitter at http://Twitter.com/WaterCenterCMU.

More Colorado Water Plan coverage here.