Colorado in-stream flow rights are seen by state water officials as a possible way to resolve U.S. Forest Service reserve water right claims filed back in 1973.
Four streams in the San Juan National Forest, including Vallecito Creek, are being looked at as relatively non-controversial ways to promote this by acquiring junior in-stream flow rights to the Colorado Water Conservation Board, which administers the in-stream flow program within the prior appropriation system.
The section of Vallecito Creek being discussed runs 17.7 miles from a high-elevation cirque lake south to the Forest Service boundary above Vallecito reservoir. The other creeks are Himes Creek in Mineral County, Little Sand Creek in Hinsdale County, and Rio Lado Creek, a tributary to the Dolores River.
The La Plata County Commissioners got an update on this on Sept. 13. The federal claims have been seen over the years as a threat to the state's prior appropriation system and state administration of water rights - especially claims on lower elevation rivers and streams that could threaten upstream private or municipal water rights.
"We've come close to resolving this in District 7 (Water Court), but not quite," said Bruce Whitehead, director of the Southwest Water Conservation District. "Right now it's still an active case. Within the last year or two, the Forest Service and state started having discussions... The Forest Service was interested in how in-stream flow could help resolve the reserve rights. We looked at the streams the Forest Service was interested in. If we're successful, it could be a great tool to resolve these outstanding cases without being litigated."
He continued, "We're looking for certainty, that they are state appropriated rights. We don't want to expand the state in-stream flow program. We're kind of in a wait-and-see mode."
Forest Service staffer Anthony Madrid said, "In the 1990s, there was a big effort to work out a settlement. That stalled out. This past year, we've put more effort into it. We want free-flowing streams to support aquatic and riparian values. We're really excited to engage in this new process."
Jeff Baessler, director of the CWCB's in-stream flow program, told commissioners that back in 1973, in-stream flow was not considered a beneficial use in state water law. State legislators passed SB 97 that year to make it a beneficial use and gave the CWCB authority to acquire those rights to ensure reasonable preservation of the natural environment and provide regulatory certainty for current water users under prior appropriation.
Only the CWCB can hold in-stream flow rights, he said. They apply to designated point-to-point sections on a river or stream, and they are administered within the priority system. None of those rights is older than 1973.
"Today I'm only talking about new appropriations. This new right probably would be January 2017," Baessler said.
Whitehead added that the proposed in-stream right on Vallecito Creek won't change anything. "It preserves the status quo," he said.
The Forest Service came to CWCB in January this year with its recommendations for the four streams, Baessler said. He said before the nine member CWCB can make an in-stream flow recommendation, there has to be a determination that a natural environment exists, that there's an "indicator species" to be protected, that the natural environment can be preserved with the amount of water available for appropriation, and that there won't be injury to senior water rights.
The in-stream right will be "the minimum amount necessary" to serve the purpose, he said. "We have to quantify that amount. Sometimes people say, 'I've seen this stream dry, so that's the minimum.' The minimum is the amount necessary to preserve the natural environment, such as the fishery. We look at median flow over time."
Those studies are now happening on the proposed section of Vallecito Creek. Madrid said, "If the weather holds, we should have the data collection by the end of the month."
Whitehead said that if CWCB supports a recommendation, it directs staff to file for the in-stream right in Water Court. Those can be contested. "At this point, we're supportive of the whole process. Everyone is waiting to see the data, to make sure it's reasonable," he said. "Technically we're still in litigation (with the Forest Service). We need to see where everything goes."
Baessler acknowledged, "The in-stream flow program is controversial. There's an impact we can have to other users, especially lower on the river. When senior users file for a change of use or something, we'll file a statement of opposition if we think there'll be harm to the status quo. That's where it gets controversial."
These four streams are high elevation on Forest Service land, he said. He doesn't think they'll be contested.
Whitehead added, "There are many counties that have contested in-stream flow because of impact on future growth. These shouldn't be." And the hope is they can become a model to resolve the federal reserved rights claims from 1973 within the state appropriation system, he said. "If they are successful, there may be other streams in the future to use this process. They are in areas that we hope will be the least controversial. This could be the start of what the Forest Service will do in the future."
Acting San Juan National Forest Supervisor Russ Bacon said, "On Division 7 (Water Court), we haven't used this process before. We'd prefer a local solution to a process that involves judges. The next big step is the data. There are still a lot of unknowns... We're always looking for a better path than reserve water rights."