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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

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Water Education Colorado

Wild and Scenic Sparks Anxiety, Opportunity

By Peter Roessmann

In Congressional testimony in 1921 on renaming the former Grand River in the Colorado River, Rep. Ed Taylor exclaimed that it was silly to have a river in Colorado named the Grand River since it could be said that all the state's rivers were grand. Likewise, it may seem foolish to designate certain river stretches in Colorado as wild and scenic since by all appearances so many reaches deserve that tag.

But federal Wild and Scenic River designation carries with it a great weight—the weight of a federal reserved water right—that complicates the picture for future use and development of water. The U.S. Bureau of Land Management's recent studies of river and stream reaches in Colorado for Wild and Scenic consideration, carried out as part of their normal cycle of management plan revisions, is prompting a lot of concern but it is also getting people talking—with each other.

‘What makes some people nervous is that if BLM names a river, it's easier for that designation to occur,’ says BLM's Wild and Scenic coordinator Roy Smith.

The Wild and Scenic Rivers Act of 1968 is an addition to the list of federal reservations that enable the federal government to designate lands and waters of the United States for specific purposes. In this case, the federal government recognized that rivers, streams and riparian areas that possessed ‘outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.’

The language of the act goes on to say that if the federal government is going to have a policy to dam certain river sections, it should also have a complementary policy to preserve the other reaches,

A lack of specificity in the 1968 act on how federal agencies should proceed with reaches to be added to the Wild and Scenic list caused a dearth of listings in Colorado. A 75-mile portion of the Cache la Poudre above Fort Collins, designated by congressional legislation in 1986, remains the only one in Colorado. In contrast, New Jersey, not as widely recognized as Colorado for its wild and scenic character, has four rivers and streams listed. Some cite the complexity of interstate water issues as a reason coastal states have many more listed rivers than landlocked states that share waterways.

Designation of the Poudre Wild and Scenic River is a classic example of political risk taking and long years of negotiation between water user and environmental interests (see ‘Cache la Poudre River, Colorado's First Wild and Scenic River’ in CFWE's Citizen Guide to Colorado's Environmental Era). In 1977, the U.S. Forest Service undertook its study of the Poudre for Wild and Scenic Status and in 1983 issued its recommendation for designation of 62 miles of the river. Environmental interests favored designating the river from its headwaters in Rocky Mountain National Park all the way down to Fort Collins.

Water users wanted to preserve the Grey Mountain dam site above Fort Collins for a possible future reservoir.

Then-U.S. Rep. Hank Brown convened a four-year negotiation process. Ultimately, Congress designated a 75-mile reach, preserving pre-existing water rights and exchanges in the designated portions of the river. It also created a federal reserved water right for all remaining unappropriated water in the wild and scenic river segments. The Grey Mountain dam site was excluded from the designation.

The 1968 federal law also called on BLM to study streams on lands it manages. BLM reviews management plans approximately every 15-20 years. Armed with a new mandate to evaluate waters within its boundaries and the funding to engage in the study, BLM field offices around Colorado have been searching for waterways with ‘outstandingly remarkable values,’ or what BLM's Smith calls ‘the best of the best.’

Suddenly, Colorado water users were hit with the possibility of new federal reserved water rights becoming intertwined in the already tangled web of water management. Like it or not, a conversation about what should be protected and why was under way.

Designating a river or stream reach as Wild and Scenic is but one tool in an available array to preserve various Colorado waterways. It is also the one that some view as the most heavy handed. For water managers whose job it is to plan ahead for future water demands, the Wild and Scenic study process is a wild card they'd prefer not to have in the deck.

Three reasons rise to the top of list of concerns of water users: Federal agencies will determine how much water is needed for adequate protection; federal agencies will be stakeholders in any water rights cases possibly affecting Wild and Scenic reaches; and, the federal government is forbidden from approving or assisting any project that may adversely affect a protected reach.

While water agencies concede that protecting other competing values of water is something important to even their own constituents, they argue the federal framework imposed on the process is much more difficult to work with rather than sitting down and negotiating other protective actions with local and state groups.

‘We realize there are a lot of competing values out there,’ said Alan Berryman of the Northern Colorado Water Conservancy District, ‘and to the extent that we can plan collaborative solutions that address everyone's needs, we think they're necessary to be looked at.’

But it's not only water agencies that are cautious of the Wild and Scenic Act, agencies and groups working to protect the many values along Colorado's waterways also see that the act can cut both ways. The delicate relationship that has been built between water user groups and competing water interests is hard won and painstakingly constructed.

Preservationists are aware that listing a stream reach can win a battle but ultimately lose the war should other situations arise that require water users' cooperation.

If the stakeholders collaborate ‘it's an opportunity for all to have certainty,’ says Taylor Hawes, the Colorado River Water Conservation District's former associate counsel. ‘If we come up with a management plan that will serve as an alternative (to the designation), there's local and state input.

‘The alternative is to leave it up to the BLM.’

Part of the trepidation from both sides comes from the uncertainty of the Wild and Scenic process. For those who want river reaches protected, there is no certainty which river portions will become eligible and suitable, that recommendations for listing are acted upon by the nominating agency, that Congress will ratify the listing or be certain that the quantity of water approved for the federal reserved water right will be sufficient.

Some agencies, such as the River District, have a spectrum of constituents, including water providers, the recreation industry and local governments.

San Juan Citizens Alliance's Chuck Wanner sees citizen momentum as necessary to move the process forward,

‘Without citizen action, (Wild and Scenic recommendations) would become a matter of record, it would be in the forest plan, and it would sit there, probably.’

The Nature Conservancy's Tom Iseman adds, ‘If you have water users on board, they have control of things the federal government couldn't affect, so maybe there's a way to achieve more.’

For water users, another concern looms: If a reach on a waterway is considered suitable for designation as Wild and Scenic, the federal agency will manage that reach to preserve the values that brought it into the process.

For that and other reasons, agencies along three Yampa River sections—deemed suitable for listing by the BLM—opted out of collaborating and plan to take their chances. They'll challenge the BLM record of decision when it's issued in 2009.

‘There's a long list of guidelines federal agencies have to follow, visual, scenic, wildlife and so on,’ says Moffatt County Commissioner and River District board member Tom Gray. ‘Each one has several other things to check. We don't feel like they went through their own guidelines to suitability.’

Even without a congressional designation, a determination of suitability can hobble water development. It also can lead to more scrutiny and opposition from federal agencies if a water project could negatively affect waterways suitable for designation. This makes the case that negotiated rather than federally mandated protections would be a preferred alternative.

On the other hand, Gray says each of the Yampa sections, which total 10 miles, would affect ‘existing development, the ability to maintain existing development and new uses.’

The federal agencies charged with evaluating Wild and Scenic candidates recognize the concerns from all parties and are very careful to work with an array of stakeholders in the process. While determining ‘outstandingly remarkable values’ may sound like a subjective judgment, it is actually a rigorous and complicated undertaking. From the federal point of view, Wild and Scenic is not taken lightly nor rashly. It's also understood that it all comes down to water.

‘The critical thing is the water management.’ says Smith. ‘Since some of the outstandingly remarkable values are water-dependent, figuring out how to make sure that the water is there to support those outstandingly remarkable values—that's the challenging piece of it.’

But in Colorado, the Wild and Scenic Rivers Act has been most successful as an incentive-inducing device. Whether that incentive is in the form of a carrot of opportunity or a stick of impending regulation depends on the point of view.

Gray says the Yampa River representatives—including Moffatt County, the Juniper Water Conservation District, Rio Tinto Minerals, the Wilderness Society and the River District—tried negotiations. The stakeholders, water users and environmental groups ‘worked out a process to create a management plan that would meet everyone's needs and that (would) be the guiding document.

‘We had a couple of meetings with the groups. One of the things we wanted to work on, were anxious to work on going in, was that we each needed to outline what our issues are so we know which way we're headed. We didn't want the Wild and Scenic designation, but the group would agree to a management plan in lieu of the designation. Environmental groups wouldn't sign it.’

Notes Iseman, ‘It's obvious the BLM's process has focused attention on this issue. I don't think people were talking about Wild and Scenic a year ago.’

Wanner, who was instrumental in getting the Cache la Poudre listed as Colorado's only Wild and Scenic River, takes a pragmatic approach to seeking river protections.

‘The current situation and the variety of interests in the Upper San Juan Basin indicate that the way to get protection for rivers in this area is to try to work within the general, larger community to get consensus and implement protections. Those protections might include Wild and Scenic rivers and they might include other forms of protection.’

Bart Miller, Western Resource Advocates' water program director, sums it up, ‘I think most find the end is more important than the means. Federal protections are potentially powerful but usually take a long time, sometimes decades, to come into being and often are stalled or stopped altogether by stiff resistance from state and local interests.

‘But for critics of federal agencies, water appears to be especially touchy. That's unfortunate, because there is a public element to water and, as such, it's completely appropriate to have it meet public benefits, not just private ones, through avenues of federal and state law."

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