The issue of leaving water in streams versus water for people drew comments and concerns at the Durango meeting of the legislature's Water Resources Review Committee on Monday.
The committee is chaired by State Sen. Ellen Roberts and meets in summer and fall when the legislature is not in session. This was the first of the committee's meetings around the state this year.
John Porter, Bruce Whitehead, Barry Spear, and Chris Treese presented concerns from the Southwest Colorado Water Conservation District for a proposed in-stream flow right on the Dolores river about 10 miles from the state line. The Colorado Water Conservation Board (CWCB), a division of the Department of Natural Resources, administers the in-stream flow program and made the proposal.
The program has been very successful and the water district supports it, Porter said.
The concern for SWWCD is that this would be on a lower part of the river below populated areas, possibly hindering future development, rather than at high elevation where the in-stream flow is still available for downstream development.
Spear said CWCB is seeking 900 cubic feet per second in May and June on 80 miles of the Dolores River.
Porter said Colorado has 18 rivers that flow out of the state, and nine are in Southwest Colorado. A low elevation in-stream flow needs to include a small amount of water for future domestic use that's senior to the in-stream flow right, and this is something the legislature could fix, he said. "There is extra water in streams, but it's in spring runoff," he said. Making use of that requires storage. "It's not fair to dump the burden of providing storage to low population areas."
Affected entities can't just file pre-emptively for rights senior to an in-stream flow right because it could be considered a speculative filing, Porter said.
Whitehead also asked the legislative committee to consider the set-aside for future human use "if this isn't do-able under existing statutes."
Treese, from the Colorado River Water Conservation District, said, "The concerns aren't unique to the Dolores. It exists everywhere you have a stream that's not fully appropriated and where there's not readily available augmentation water for future development."
Forest Service and Bureau of Land Management claims for by-pass flows are a similar issue. It's not a new issue, but now it's being tied to permit renewals for private uses on federal land - everything from ski areas to small irrigation ditches.
Whitehead cited the joint Forest Service and BLM Resource Management Plan for Southwest Colorado. "The concern is the proposed criteria for evaluating by-pass flows. A federal by-pass flow imposed as a permit requirement makes planning very difficult. It went from a guideline to a standard" in the Forest Service part of the plan, he said. "The BLM stays with guideline, but the criteria are the same. The Record of Decision was entered with all the things we had concerns about." A change would need a plan amendment.
Attorney Adam Reeves from SWWCD recounted the history of federal by-pass flows since 1997. "A federal water rights task force was convened and concluded that the feds didn't have authrity to impose by-pass flows." There was a recommendation that the feds use the CWCB in-stream flow program instead, and they did, he said.
"But in the San Juan National Forest, we're seeing mandatory by-pass flows. They aren't small. They are 40 percent of average flow in summer, 20 percent in winter, 50 percent of natural habitat flow" before humans arrived, Reeves said. "These by-pass flows are the elephant in the room on whether Colorado can do what it wants to do. There's no evidence that the in-stream program is inadequate," he said, predicting that demands for by-pass flows will show up elsewhere with federal permits.
SJNF representative Kelly Palmer said, "In January 2015, the Forest Service and Department of Natural Resources agreed on a process to work collaboratively in any instance where the standard is triggered. So far, six projects have been reviewed under this process, and it seems to be working. ... We're committed to a partnership with DNR and CWCB. It's a top priority to look at whether the in-stream program will suit our needs."
Reeves countered, "This isn't just new authorizations. This is renewals. ... This turns prior appropriation topsy-turvy."
Whitehead added that the Forest Service is "double-dipping" by claiming a by-pass flow on top of the CWCB in-stream flow right. "It shouldn't be both," he said.
La Plata County Commissioner Julie Westendorff and County Attorney Adam Smith raised yet another issue with the legislative review committee.
The county filed for and got conditional water rights upstream and senior to Durango's recreational in-stream rights, to have water available for future development needs, they said. But two entities in San Juan County, N.M. have filed objections. "This has statewide impacts," Smith said.
The problem, Westendorff said, is provisions in state statute that "any person" may object to a water filing. "The real impact of that, what keeps someone from Los Angeles or Phoenix or Mexico from filing (an objection)? It will cost us $100,000 to defend this. It's big money for us," she said. "We need clarification of what 'any person' means regarding water cases. This isn't just a La Plata County issue. If the door for objectors is this broad, rights holders across the state are at risk."
It's an issue that should be dealt with through inter-state compacts, Whitehead said, otherwise, "Out-of-state entities or individuals could make it very difficult for small users to irrigate one acre or have their domestic well. ... I don't belive this was the original intent of the statute."
The Colorado Water Plan, now up for public comment on the second draft, also got a lot of attention at the legislative committee's afternoon and evening sessions, especially on the need for alternatives to trans-mountain diversions (TMDs) of West Slope water to the urban Front Range; and alternatives other than TMDs to "buy and dry" of Eastern Plains ag water converted to serve Front Range population growth.
