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

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

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

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…

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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.

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.