Instream flow proposals spark debate

by Tonya Bina
Sky-Hi Daily News

November 7, 2007

During a meeting about instream flow recommendations Tuesday, philosophical differences over water bubbled to the surface, but Colorado Water Conservation Board and Bureau of Land Management staff were prepared.

    With various firming projects and water-clarity issues weighing on the West Slope’s shoulders, Grand County Commissioners told the agencies earlier that day, “We are a little uncomfortable when it comes to water.”

    The instream flow meeting, held at the County Road and Bridge building, was hosted by the Colorado Water Conservation Board (CWCB) and the BLM. The BLM, as it does each year, has recommended segments of Grand County streams for further protection.

    The Conservation Board was formed in 1973, when the Colorado Legislature recognized “the need to correlate the activities of mankind with some reasonable preservation of the natural environment.”

    It is considered one of only two entities in Colorado that allows water rights for non-consumptive use. Before it, Colorado water law written in the mid-1800s had been based solely on beneficial use. The law did not recognize water rights for the purpose of merely of keeping water flowing in rivers.

    The laws “don’t fit today’s Colorado,” said Kirk Klancke, river advocate and president of the local chapter of Trout Unlimited.

    Klancke supports a “tweaking” of those laws to allow those with water rights the ability to keep them without being forced to consume — in other words, keep water rights for the river itself.

    “The CWCB flows were the first attempt to find environmental water,” Klancke said.
Anyone can make recommendations for the state’s Instream Flow Program, which takes data from all interested parties — including its own staff— to assess whether a segment of a stream, river or even a lake should be protected.

    “What staff does is look at the science and make determinations on the natural environment, water availability and the material injury to other water right holders,” said Jeff Baessler, assistant section chief of the Conservation Board’s Stream and Lake Protection Section. “Staff looks at the recommendation and evaluates that from a scientific perspective.”

    The CWCB, made up of a member from each of Colorado’s seven water divisions and three more from the North Platte drainage, the city and county of Denver and the Department of Natural Resources, makes the final decision on those state water rights through a public process.

    In all, the state holds appropriations on 1,463 individual stream segments. That represents, 8,636 miles, which is about 29 percent of the rivers in all of Colorado.

    According to the Division of Wildlife, Colorado has 29,289 miles of continuously flowing rivers and streams.

In Grand County
     In this year’s round of appropriations by the Colorado Water Conservation Board, the BLM has recommended expanded instream flows on seven segments of streams in Grand County. The Division of Wildlife has recommended another.

    The streams on the list are: Arapaho Creek, Mule Creek, Rabbit Ears Creek, Troublesome Creek, Corral Creek, Beaver Creek, Willow Creek and Upper and Lower Troublesome Creek.

    Tuesday’s meeting started the public process of gathering more data. It also served to provide information to other water rights holders.

    Ranchers, county officials and river-protection advocates took the opportunity to talk about the streams they know.

    Several who attended the meeting hold water rights on those streams and worried about the repercussions of the state holding rights to more streamflows.

    Baessler explained that any rights appropriated this year would be junior to the rights of others, and unless others’ use of the water changes in some way, present-day water users will not be affected.

    But the instream flow program makes ranchers uncomfortable. Bill Thompson, water commissioner in Grand County’s water Division 5, whose wife Wendy is a third-generation rancher, said he recognized that this year’s appropriations wouldn’t affect ranchers’ irrigation practices now, but it’s the future people worry about.

    “CWCB is going to be in every case of any water right change in the future. They’re’ going to be there in the future, that’s the rub with ranchers,” he said in a phone interview.

    Ranchers, who each year face more challenges in their efforts to do business such as rising fuel prices, restrictions on grazing, weeds and water, are “original stewards of the land,” Thompson continued, and they care for the environment and its streams on which they depend for their livelihood.

    But, government bureaucracy makes “it harder to stay in business anymore,” he said.
“Government bureaucracy is getting in the middle of streams that have survived for 100 years,” he said.

    During the meeting, Thompson asked Conservancy Board staff members, “I worry about the irrigators. What are you going to do next year?”

    Many river users agree that irrigation, which is said to return about 80 percent of the water back to rivers, is a better scenario for local rivers than trans-basin diversions. But instream flows with zero consumptive loss is even better for overall river health, Klancke said.

    Irrigation water returned to the rivers can have a higher salinity.

The process
     According to state law, the CWCB is required to seek streamflow recommendations from the Department of the Interior and the Department of Agriculture. Such recommendations are considered part of federal agencies’ land stewardship.

    The BLM cycles its recommendations through each district of the state about every five years.

    From Tuesday’s meeting, Baessler said staff members gained valuable information from citizens about various streams, such as the amount of water and the senior rights on Corral Creek, as well as the amount of late-season flows on Beaver Creek.

    “My concern is that what you have now is sufficient. I seen no reason that you should have more just because you want more,” said Duane Scholl of Kremmling about Corral Creek.

    Because land is sold and people move on, Baessler said, the intent of the program is to keep streams healthy regardless of change to protect river life and water quality for the future.

    The analyses of the streams are being done prior to the holidays, followed by a contested hearing process in Denver in January, at which the public is encouraged to attend and express any concerns about streamflow recommendations. People then have until March 31 to file any notice of contest. In November, staff presents its final recommendation on the appropriations, with notice to all those who had contested.

    The CWCB then takes final action in May.

    Public comment is being accepted now.

    Toward the end of the public meeting, Baessler said the CWCB staff’s goal is to strike a balance between the different philosophies that naturally collide when it comes to water in Colorado’s rivers and streams.

    “We think we’re doing our job when Trout Unlimited and water users are both throwing rocks at us,” he said.

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