Lawsuit filed on Dolores River standard

Monday, April 4, 2016 9:45 PM
New minimum flows established for the Lower Dolores River will improve its health, the state hopes. Here, Bureau of Land Management river rangers teamed up with the Dolores River Boating Advocates and the Tamarisk Coalition to conduct a campsite inventory on the Lower Dolores.
Campsites were cleared and signs installed by the BLM and volunteers at campsites on the Lower Dolores River. The section from below the confluence with the San Miguel to Gateway is rarely run, but has boatable flows every year for four to six weeks. New in-stream flows are intended to mimic a natural hydrograph, but are being challenged in water court.

The Southwestern Water Conservation District has filed a legal challenge in water court against a new minimum flow requirement for the Lower Dolores River established by the state last year.

In September, the Colorado Water Conservation Board agreed to establish minimum in-stream flows up to 900 cubic-feet per second in spring on the Dolores River between the confluence of the San Miguel River and Gateway.

The new flow standards on the 34-mile stretch are intended to help river health, including three species of native fish: the flannelmouth sucker, bluehead sucker and roundtail chub.

Local water boards objected to the new standard, arguing that the flows were too high and could not be met in drought conditions. In addition, there was fear that water stored in the upstream McPhee Reservoir could be used to meet the standard.

But the CWCB denied their appeal, and the minimum flow plan for the Lower Dolores River was approved. In December, SWCD responded by filing a lawsuit in Colorado’s Division 4 water court in Montrose to try and overturn or modify the flow allocation.

Their lawsuit claims CWCB’s action on the Lower Dolores River exceeds the ISF’s statutory standard of “minimum stream flows to preserve the natural environment” and that it does not protect “present uses” of the water.

It further states that the new in-stream flow is inconsistent with CWCB’s statutory responsibility to develop water for beneficial and future use for state residents, and that the new standard is inconsistent with CWCB’s appropriation of an in-stream flow regime on the San Miguel River.

John Porter, SWCD board president, says it’s time to rethink the in-stream flow program so that some of it is reserved for future growth.

“A small amount, 1 to 2 percent of average in-stream flows, should be held by the CWCB for future domestic uses,” he said during a meeting with the Montezuma County commissioners. “We want to get people talking about the idea.”

The so-called “carve out” concept suggests tapping in-stream flow allocations to provide a more accessible water supply for unforeseen small development projects.

In defending the new Dolores River in-stream flows, CWCB was joined in the lawsuit by Western Resource Advocates, Conservation Colorado, and San Juan Citizen’s Alliance.

“We believe the in-stream flow decision not only protects the beautiful Dolores River, but affirms the use of this vital tool to leave a legacy of health rivers throughout Colorado,” said Jimbo Buickerood, public lands coordinator for the San Juan Citizen’s Alliance.

In-stream flows are appropriated by the CWCB in rivers and lakes to preserve Colorado’s natural environment. They are administered within the state water-right priority system and are junior to existing water rights but senior to future water right claims.

They are also seen as a way to retain state control over local waterways.

“In-stream flows are designed to protect natural hydrographs on the river, and we feel they are better than top down river management from the federal side,” said Ted Kowalski, a CWCB water resource specialist, during a recent water forum in Cortez.

The new in-stream flows for Lower Dolores River begin below the San Miguel confluence are as follows: minimum flows of 200 cfs from March 16 to April 14; 900 cfs from April 15 to June 14; 400 cfs from June 15 to July 15; 200 cfs from July 16 to Aug. 14; and 100 cfs from Aug. 15 to March 15.