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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.

Browse articles and find a flipbook of the magazine here.

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Water Education Colorado

The Day the Birds Hired Lawyers

By Lisa Everitt

How wildlife mitigation went from afterthought to prime mover

When it comes to wildlife mitigation, it's not enough for water project managers to do a good turn. They want to do a tern good.

Least terns, to be precise—not to mention piping plovers, bald eagles and bonytail chub.
That's what Mike Francis does for a living. He's a wildlife biologist with the U.S. Bureau of Reclamation, and his job for the last seven years has been to ensure that the Animas-La Plata Project does not mess up the lives of birds, fish or humans.

Francis wrote much of the Environmental Commitment Plan that governs many things about the $500 million Ridges Basin Dam project, from protecting nesting habitat for golden eagles to controlling spurge and knapweed by deploying 750 weed-eating goats on damaged grazing lands.

About $12.8 million of the Ridges Basin's initial $432.5 million cost estimate was allocated for wildlife, wetland and cultural mitigation projects. Many of its components have proceeded in parallel with construction of the dam, which received its topping-out load of dirt in early November.

When a project receives funds for wildlife mitigation, that money can be counted on, Francis says. ‘This project has been pretty solid. Reclamation keeps its commitments.’

It was not always that way. Thirty years ago, such budgets were routinely raided to cover construction cost overruns, but ‘that's kind of a bygone era,’ Francis says.

In the case of older projects such as the Colorado-Big Thompson or Fryingpan-Arkansas, interest in the wellbeing of terns and pikeminnows came long after the authorizing legislation.

The Bureau of Reclamation is constrained by what Congress authorized it to do on each project, explains Reclamation spokesperson Kara Lamb.

‘People's values have changed,’ she says. ‘We have to do what we can for recreation and wildlife, when we can, but we aren't authorized to do very much on the older projects. … You're looking at facilities that have been in place for 55 years.’

In 1937, when Congress approved the CBT, backers sought water for agriculture first and foremost. Boosters sought to encourage growth in the American West by providing plenty of water and hydropower for people and industry. And wildlife habitat and conservation were the province of Aldo Leopold and a few other environmental pioneers.

It was unthinkable that there might someday not be enough clear mountain runoff to prevent the water quality problems. Or that the wellbeing of tern and sturgeon would become a rallying cry. Who would have guessed that children would write letters to their congressmen on behalf of the humpback chub, while grown-ups paid thousands of dollars to play on the water in little plastic boats?

To the politicians, engineers and water users who crafted the CBT, rebuilding and protecting Eastern Colorado's farm economy was their highest priority.

‘They wanted to prevent another Dust Bowl,’ Lamb says. ‘During the Depression, they had no idea there would be half-a-million-dollar yachts on Horsetooth Reservoir.’

By the time the Fry-Ark project came along in 1962, attitudes and priorities were beginning to change. In the postwar economy, recreational development had become a force to be reckoned with in the Colorado high country. Protections for wildlife were written into some components of Fry-Ark, including the authorization for Ruedi Reservoir, which began storing water in 1968.

‘We can do some things,’ Lamb explains. ‘It's written in the law, and that gives us a little more flexibility.’

The seismic shift occurred in the early 1970s. The National Environmental Policy Act was passed in 1969 and signed by President Nixon in 1970, requiring environmental impact statements on major federal projects. The U.S. Environmental Protection Agency made its debut later that year. Both the Endangered Species Act and Clean Water Act came into being in 1973.

Led by an undersized Tennessee fish called the snail darter, fish, trees and waterfowl got their own set of attorneys, a place at the bargaining table and attention from the U.S. Senate and the Supreme Court. The Court ruled in 1978 that the Endangered Species Act required federal agencies to curtail any activities that could jeopardize the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitat. Because almost all water projects involved federal agencies at some level, that meant even projects that were well under way could be revised, thrown into years of litigation or even cancelled.

The Upper Colorado River Endangered Fish Recovery Program came about as a way to allow needed water projects to go forward while protecting four endangered fish species in the Upper Colorado Basin. The agreement, signed in 1988, enables cooperation between the U.S. Fish and Wildlife Service and various water entities; as long as progress is being made on endangered fish recovery, the Fish and Wildlife Service will sign off on projects depleting less than 3,000 acre feet per year. Larger projects are taken under individual review.

Reduced stream flows, overpopulation of nonnative fish species, diminished wetland habitat and interruption of spawning migration patterns by dams and other structures have endangered the formerly plentiful humpback chub, bonytail, pikeminnow and razorback sucker. To mitigate those impacts, Reclamation, the Colorado River Water Conservation District and other partners reworked releases, developed instream flow plans, installed fish ladders and nets, built hatcheries to put native species in and practiced harvesting to take non-native species out—all expensive and labor-intensive.

While the four threatened species aren't out of the woods yet, the recovery program has allowed more than 600 projects involving more than 600,000 acre-feet of water to go forward in the last 20 years. Still, as Eric Kuhn of the Colorado River District told a roundtable last May, ‘The Upper Basin Program only provides certainty for Upper Basin water uses to the extent it is successful. We must make continued progress toward recovery of the listed fish species or all bets are off.’

Over the past two decades, wildlife mitigation has metamorphosed from afterthought to unwanted adjunct to full-fledged planning component.

On the Animas-La Plata Project, that planning is detailed in a 35-page checklist of environmental commitments, ranging from guaranteeing return flows for endangered fish in the La Plata and Animas rivers to removal of noxious weeds and protection of nesting places for golden and bald eagles during construction of the Ridges Basin Dam and Reservoir. Roads and campgrounds were sited to avoid elk and deer migration paths.

Even long-dead animals receive protection under the plan, which protects dinosaur bones, fossils and Native American cultural artifacts that are uncovered during dam and reservoir construction and filling of Lake Nighthorse.

More than 6,000 acres on the Huntington Ranch, just north of the New Mexico border along the La Plata River, were acquired to replace wetland, riparian and upland habitat disturbed or removed by water project construction. Livestock grazing had eroded the riverbank and non-native Russian olive and tamarisk were crowding out native plants.

Plans were made to remove noxious weeds whose seeds washed from upland grazing areas to the riverside, to remove flood control levees and restore the natural channel of the river. It was an area that would not only compensate for wetlands disturbed by dam and reservoir construction, but also leave a significant stretch of the river far better off than it was before.

Existing structures on the rivers haven't escaped attention. Earlier this year, Francis wrote a paper on the impact of a diversion dam and pumping station on two sensitive fish species—flannel-mouth and bluehead suckers—in the Animas. That was Francis seine-netting and counting newborn suckers to determine whether the structures got in the way of upstream migration.

‘Animas-La Plata is vastly fascinating in all its aspects,’ he says. ‘For a wildlife biologist, it's a dream job.’

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