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Water Education Colorado

CWCB's Instream Flow Program matures

by Joshua Zaffos

When Wilford Speer arrived in the Dolores River Valley in 1962, as the region’s first state-appointed water commissioner, ranchers greeted him with shotgun barrels. Settlers had worked hard to carve out a living in the wild desert landscape, and an outside authority on water management wasn’t given a warm welcome.

The region of the Dolores River—El Rio de los Dolores, or the River of Sorrows—isn’t exactly an inviting landscape. The dramatic sandstone cliffs rising above the river provide a breathtaking backdrop, but the area is foreboding. Water is scarce; precipitation averages just 12 inches a year.

Only five years after the federal government officially opened the Dolores Valley to homesteading in 1873, ranchers began trying to divert water. Plans for a large reservoir date back to 1900, but it wasn’t until the 1960s that Congress authorized the Dolores Project and the construction of McPhee Reservoir.

But the completion of McPhee in 1985 hardly ended conflicts over the flows of the Dolores River. Before the dam was finished, environmental concerns and recreational uses were exerting their own pressures on the river. A 1977 study recommended 105 miles of the Dolores for Wild and Scenic River designation, a federal stream protection status that could compete with existing water rights. A proposed wilderness area and the plight of struggling native warm water fish also threatened to tie up water for preservation through federal action. And then a dam’s tail-water trout fishery and popular boating runs added even more demands for adequate flows at certain times of the year.

Achieving the balance of human and environmental needs on the Dolores and other Colorado rivers hasn’t been simple. Some of the responsibility falls to the Colorado Water Conservation Board and its Instream Flow Program. Crafted to correlate “the activities of mankind with reasonable preservation of the natural environment,” the state program has taken shape over decades to enable flexible applications of instream flow water rights with existing water use for agriculture, industry and communities.

On the Dolores, the CWCB holds a decree for up to 78 cubic feet per second—water to be left in the stream—on a stretch of river downstream of McPhee Reservoir. While outside intervention on water issues is still regarded as suspect, disparate water interests have learned to leave their guns at home. One example is the five-year-old Dolores River Dialogue, a collaborative effort that brings together irrigators, federal land managers, CWCB staff, state wildlife officials and environmentalists to work out flow releases from McPhee. Guiding documents are building toward a comprehensive approach to flow management for irrigation, recreation and the environment.

“The CWCB has had active participation in a lot of these efforts,” says Michael Preston, a past facilitator of the Dialogue and general manager of the Dolores Water Conservancy District, which operates McPhee. Discussions about federal protections “could potentially have been a divisive issue,” Preston says, “but we’re trying to use it to build on.”

The history on the Dolores and the cooperation of the Dolores River Dialogue reflect the progress of both the CWCB and the Instream Flow Program. Since the program’s creation in 1973, legislative and administrative advances and changes in institutional and personal attitudes have represented an evolution in how the Board manages water resources.

“I think the Instream Flow Program has grown into itself over time,” says Amy Beatie, executive director of the nonprofit Colorado Water Trust. “It’s not seen as anathema anymore.”

The Instream Flow Program arises

Western water law developed without much consideration for rivers themselves. The doctrine of prior appropriation codified the principle of “first in time, first in right,” forcing people to divert as much water as they could possibly use or risk losing their senior rights. With the exception of the requirement that water reach downstream senior water right holders or be allowed to run out of state to meet interstate compact obligations, the doctrine practically ensured the depletion of creeks and rivers.

Over time, the diversion and storage of water reduced the peak flows of streams across Colorado, ultimately to the detriment of the fish, wildlife and vegetation that rely on a river’s natural hydrograph, which typically includes a flood stage following spring snowmelt or seasonal storms. During dry summers, some stream reaches would become parched, waterless channels. Native and introduced trout often suffered, as did the lesser known and appreciated warm water fish, including species of chubs, suckers, dace and minnows.

The ecological degradation didn’t go unnoticed as the country developed an environmental consciousness in the 1960s and 1970s. People began to appreciate rivers for their recreational and environmental values: Bone-dry streams couldn’t be paddled, rafted or fished, nor could they support wildlife.

The wave of new environmental laws, including the National Environmental Policy Act of 1969 and the Endangered Species Act of 1973, enabled the federal government to mandate permit conditions requiring flows to be left in streams to protect the environment.

This concept of instream flows, and particularly the idea of a private entity or a federal agency imposing them on the state, caused “some hand wringing and worry from vested interests,” says Michael Browning, a water attorney with Porzak Browning and Bushong in Boulder, because it threatened long-standing water rights under the prior appropriation law. Rather than face the imposition of a federal standard, Colorado water users forged their own path.

State and regional water managers “could see that there needed to be some protection and it needed to be guided by the state, and not the federal government,” says Dan Merriman, who worked as chief of the CWCB’s Stream and Lake Protection Section from the 1980s through 2007.

The Colorado General Assembly created the state’s Instream Flow Program in 1973, recognizing the CWCB as the exclusive agent for appropriation or acquisition of water rights to preserve the environment “to a reasonable degree.”

Ever since the CWCB was first created in 1937, its work was primarily dedicated to developing water resources, so the Instream Flow Program was a new hat for the Board to wear, Merriman says. And the Board didn’t necessarily wear it comfortably at first.

On one hand, Colorado became a trailblazer among western states by acknowledging and protecting instream flows. But the language and bounds of the law carefully avoided treading on existing water use. Newly appropriated instream flows were junior to existing water rights, and the creation of instream flows were limited to preservation—as compared to the improvement—of environmental conditions. Perhaps the most glaring shortcoming was that, even though the law approved of acquisitions to obtain more senior rights, the state didn’t make any money available for that purpose.

More tools for protection

As of 2009, Colorado has appropriated instream flow rights on more than 8,800 miles of streams, representing about 30 percent of the state’s perennial river miles, and natural lake-level rights on 486 lakes. Typically, an individual or agency recommends a stream reach or water body for protection, and CWCB staff then prioritize the recommendations based on various criteria.

Scientists collect biologic, hydraulic and hydrologic data in the field and primarily use the R2Cross method, originally developed by the U.S. Forest Service, to develop the recommendations. Depending on the complexity of the stream reach being considered or the ecosystem being protected, other techniques may be used to allow for more adaptive management of the resource.

Geoff Blakeslee, the Board’s chair and director of The Nature Conservancy’s Yampa River Project, is especially interested in making sure the Board has enough data to be sure it is adequately addressing the instream flow need. He hasn’t been shy about asking the staff to return to the field to collect more data, especially when it comes to assessing a river’s year-round flow variability. “It’s very important that folks have a chance to look at that year-round hydrograph,” he says.

Perhaps such efforts will help the program do more than what has historically been just “enough to keep the backs of fish under water,” a concern expressed by Drew Peternell, an attorney and the director of Trout Unlimited’s Colorado Water Project.

The extremely basic level of stream protection reflects the early reluctance of water managers to apply instream protections. “There was certainly skepticism,” Merriman says of the program’s first years.

Early on, two water conservation districts sued, challenging an instream flow allocation on the Crystal River near Carbondale and questioning the program’s constitutionality. In 1979, the Colorado Supreme Court upheld the program’s legality within the prior appropriation system, and the power brokers of Colorado water realized instream flows were here to stay.

Legislators and water managers spent the following decade clarifying and adding to the program, generally to protect existing water users and the exclusive role of the CWCB. In 1986, for example, Sen. Martha Ezzard sponsored legislation that confirmed the CWCB’s authority to accept donations of senior water rights or to temporarily lease those rights to protect instream flows.

“Each and every piece of legislation was a building block,” Merriman says. “The evolution was not just in the program or the legislative changes, but also in each community learning about the program and seeing how it did not have detrimental effects on water users.”

But environmental interests felt that the evolution was occurring too gradually, especially as recreational use and environmental appreciation of rivers and lakes skyrocketed along with the state population. At the beginning of the 21st century, some environmental groups were poised to push legislation that would allow privately held instream flow rights. A compromise measure, Senate Bill 156 in 2001, introduced a significant revision to the program, authorizing the acquisition of water for instream flow use to improve—and not just preserve—the environment.

“It was a really important tool the legislature gave us,” says Linda Bassi, current section chief for Stream and Lake Protection at the CWCB, “because it gave us a way to strengthen our program to do more with acquired water.”

Also in 2001, the Colorado Water Trust formed as an independent nonprofit group with support from both the environmental community and state and regional water managers. The trust pursues voluntary transactions to acquire water rights for instream purposes, holding a purse that the CWCB still lacked at the time. Browning, who is also the trust’s president, describes the organization as a facilitator for the Instream Flow Program.

Legislation over the following years has expanded the program’s flexibility and authority to benefit the environment. In 2003, amid the statewide drought, the General Assembly authorized the use of loans and leases of water rights for instream flows so irrigators could temporarily lease their water. Subsequent bills have provided incentives for leasing, including protection of leased water rights’ historical consumptive use. After initially being seen as a threat by vested water users, instream flow acquisitions are now a potential income source.

Each revision is “another arrow in the quiver,” says Beatie of the Colorado Water Trust.

But the new brand of heavy artillery didn’t arrive until 2008 when the state legislature finally set up funds to purchase water rights. A House bill authorized the use of $1 million annually from the CWCB’s Construction Fund to lease or acquire water for instream flows. A Senate bill allowed for another $500,000 annually to be spent from the Species Conservation Trust Fund on instream flow purchases for declining or endangered native fish habitat.

“They’re intended to put life into the acquisition program,” Peternell says of the changes. “For 36 years, [the CWCB] had the right to acquire water, but it never had a dime to do it.”

The state Instream Flow Program has finally become a viable alternative to federal tools to impose instream flows, Peternell adds.

Pushing forwardon the Dolores

Many of the new elements of the Instream Flow Program are being tested through the Dolores River Dialogue. River interests continue to wrestle with the implications of Wild and Scenic River designation, the recovery of declining warm water fish, and the demands of trout anglers and boaters—and how to balance them with agricultural, community and industrial use.

“We decided fairly early on that we would try to put a scientific foundation under this,” says Preston.

Part of the impetus for a science-based approach followed a severe die-off in the trout fishery in 1990, caused by low releases from McPhee. The CWCB’s instream flow decree for the Dolores protects up to 78 cubic feet per second, but reservoir operations allowed for minimal releases—just 20 cfs—during dry years, leading to high water temperatures that decimated the trout. Recognizing the threat to the fishery, water managers developed a “pool management” scheme that sets water aside in the reservoir for the fish. The new system allows for variable flows during the most critical times, including the summer when the higher releases keep water temperatures cool. The flexible program has served anglers, boaters and the ecosystem without forcing the CWCB to call out junior water rights.

“Variable flow requirements for ecological purposes are one of the things the Instream Flow Program is starting to adapt to,” Preston says.

Dialogue partners generally support working through the collaborative process to protect downstream flows in the river without greater federal controls. In December 2008, the Lower Dolores Plan Working Group, operating under the Dialogue, began studying alternatives to Wild and Scenic designation that will protect existing water rights and also uphold the “Outstandingly Remarkable Values” that have earned the lower river Wild and Scenic consideration.

The Dialogue has also surveyed warm water fish populations and evaluated their habitat components, which differ from trout’s. Native fish dominate on the Dolores, but three warm water species—the flannelmouth sucker, bluehead sucker and roundtail chub—could conceivably be listed as endangered if their populations continue to decline, according to John Sanderson, a freshwater ecologist for The Nature Conservancy. Sanderson, who’s been impressed with the efforts of the state and the Dialogue, says, “The Dolores is especially unique because the white sucker—an East Slope species that hybridizes with the other native suckers—is absent.”

The CWCB has provided funds to help establish the field science program, which is also looking at geomorphology based on sediment movement as well as riparian vegetation patterns. The agency’s support leverages the cooperation of other entities, such as Fort Lewis College in Durango and the federal San Juan Public Lands Center. The next step, Preston says, is to figure out what changes to make to water management within the existing supply, a decision that will weave in the collective data on water quality and temperature, flow measurements, and fish and vegetation surveys. Flow acquisitions or leases through the CWCB could be used to ensure that instream flow benefits are maximized within the existing decrees.

Similar compromises are being worked out on the San Juan River and the Upper Colorado. Managers anticipate using the new state funds for additional flow acquisitions and leases for native cutthroat trout, plains fish species and several warm water fish in the Colorado River system.

Contention isn’t going to just float away, but the CWCB and water users are wielding policy tools instead of weapons these days. Wilford Speer would be relieved.

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