Dolores River NCA idea encounters turbulence: Montezuma County opposes the proposal, but others say it would protect water, values

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Montezuma County opposes the proposal, but others say it would protect water, values

LOWER DOLORES NCA PROPOSAL

A national conservation area has been proposed along the Lower Dolores River. Photo by Gail Binkly

Worried about water and wary of anything involving the federal government, the Montezuma County commissioners and the San Juan Basin Farm Bureau have come out in opposition to the creation of a national conservation area along the Lower Dolores River.

Following a discussion on Feb. 9, the commissioners voted 3-0 to take a stance against legislation creating an NCA, even though a draft of such legislation has not been finalized or made public yet. “When you start opening the door to having designations, I’m kind of like the rancher that stood up over the rim of the Dolores and looked down on the Dolores and said, ‘What’s wrong with it right now? What’s wrong with it the way it is?’,” said commission Chairman Keenan Ertel told the Free Press.

But others say creating an NCA might be the best way to keep the Dolores River Canyon from a more-restrictive designation such as a national monument, and to protect the river’s precious water and the area’s traditional uses.

“I’m not going to say the NCA’s the perfect answer, but I’ve been involved because I believe that we need something to protect the values – all of them,” said Al Heaton, a member of the working group that has been developing the legislation since 2010. “I’m a rancher and I have grazing rights down the river and trail rights on the river, so I have my issues that I’m on there for, and other people have their issues.

“We’re trying to craft something that will work and cover all those issues.”

Protecting water rights

The creation of an NCA was the consensus plan reached by a grassroots group called the Lower Dolores Working Group that began meeting in December 2008. The LDWG – made up of more than 40 people representing a broad spectrum of interests including counties, environmentalists, ranchers, private property owners, and water boards – was concerned about the fact that much of the Dolores River from McPhee Dam to Bedrock, Colo., had been classified by the San Juan Public Lands Office in its latest management plan as “suitable” to become a wild and scenic river, a federal designation that carries with it a federal reserved water right.

Although a wild and scenic river generally can’t be designated without an act of Congress, once a river segment is called “suitable,” it must be protected so as to preserve the values that make it special.

After a year and a half of discussion, the LDWG agreed that an NCA would be the best way to protect water rights on the river. Their idea was that the NCA – which would be created through locally crafted legislation– would include a statement releasing the Lower Dolores from any future consideration as a wild and scenic river. Potentially involving more than 90 miles of river running through four counties, the NCA would have management provisions tailored to suit the area, including statements intended to protect water and private property rights.

The LDWG appointed a smaller group called the Legislative Subcommittee to work on the legislation. [Disclosure: Free Press editor Gail Binkly has taken minutes for the LDWG and Legislative Subcommittee.]

Another issue of concern to locals was the status of three declining native fish species that live in the river, any one of which could be listed as endangered in the future. Locals worried that such a listing could result in a taking of water to protect the fish.

An advisory group called the Implementation Team was formed in July 2011 to suggest ways to increase native-fish populations – for example, by slightly changing the timing of spring spills from the dam to enhance fish spawning. The Implementation Team was designed to continue working regardless of what happened to the NCA legislation.

In opposition

But on Feb. 9, after hearing from several locals opposed to the NCA – including Linda Odell of the San Juan Basin Farm Bureau; Don Schwindt of the Dolores Water Conservancy District Board; and Drew Gordanier of the Southwestern Colorado Livestock Association – – the commissioners decided to stand against it as well.

“I believe it’s time for Montezuma County to come out in opposition to the NCA,” said Commissioner Larry Don Suckla.

Odell presented a statement from the Farm Bureau that was strongly supported by the others who spoke against the NCA. (The statement in its entirety can be viewed at www.montezumacounty. org.)

In the statement, the Farm Bureau expressed a concern that the NCA proposal, however well-intentioned, might become something that could ultimately erode existing water rights in the river.

Although the NCA proposal states there will be no water rights associated with it, the Farm Bureau said, the language lacks “enough specificity to avoid strong future disagreements.”

It states that the NCA would create a requirement to increase base flows in the Lower Dolores to 36,500 acre-feet while prohibiting major new dams and largescale water developments.

“It will add significant uncertainty to our community desire for water use protection,” the statement says.

“We must carefully try and understand that actions we take today may have unintended consequences. . . often driven by political or judicial actions initiated by folks with interests different than our interests. . .

“We do not want to negotiate water away in our proactive response that we would not expect to lose if we just remain defensive.”

Schwindt, who has been involved in water issues for many years, told the commissioners that locals have made it clear they don’t want additional water going down the river to help fish.

“This community taxed itself because it didn’t want water to go downstream,” he said.

Suckla, who represents Montezuma County on the Legislative Subcommittee, said he had become concerned at its Feb. 2 meeting when he was given a draft memorandum listing the members of the Implementation Team that works on water and fish issues.

He questioned why the nonprofit American Whitewater was on the 15-member team “since they don’t own any land” that would be affected by the proposal. He noted that the team includes representatives of the Bureau of Land Management (which owns much of the land through which the Lower Dolores flows), Bureau of Reclamation (which manages McPhee Dam), Colorado Parks and Wildlife, San Juan Citizens Alliance (an environmental group), Ute Mountain Ute Tribe, and Nature Conservancy (another environmental group).

“In my opinion, the list is so unfair for the citizens of Montezuma County,” Suckla said. He said only five members of the group would “stick together” to protect water rights: Montezuma, Dolores, and Montrose counties, the Dolores Water Conservancy District and the Montezuma Valley Irrigation Company. “Where is the Farm Bureau, the mining industry?” he asked.

Taking more time

However, Bruce Smart and Walt Henes, members of the DWCD board, said more time should be taken to study the NCA idea.

Smart warned that without a serious effort to protect native fish, there could be a “slippery slope” leading to an endangered- species listing that would result in the loss of water rights. “What other things are out there besides the NCA [to protect water]?” he asked.

He said the 36,500 acre-foot figure mentioned by the Farm Bureau was not developed by the Implementation Team but is called for in documents created years ago. “If the NCA goes away, that doesn’t go away,” he said.

Although the Dolores Project was built for irrigation and municipalities, some consideration was also given to boating interests and a fishery. There is a designated “fish pool” in McPhee that currently stands at 31,800 acre-feet. Biologists have for years recommended that it be increased to 36,500 acre-feet to benefit the fish.

“The NCA is best in the long run,” Smart said. “We have to protect ourselves somehow.”

Following the meeting, Smart told the Free Press the DWCD board is continuing to look at the NCA proposal to see if it could be made workable. “It’s a tough decision,” he said.

Henes also told the Free Press that he believes the DWCD board should take more time to study the draft legislation thoroughly. “All of us are concerned about what happens to our water,” he said. The NCA may be the best way to protect water rights in the river, but the board will have to make that decision, he said.

‘At this for years’

Ertel, however, told the Free Press that he believes the commission was right in voting to oppose the NCA even before the draft legislation was released.

“My greatest fear is that there are people that want water out of our reservoir and they want to put it to uses that weren’t involved in the original building of the Dolores Project and the McPhee Dam,” he said. “They want to believe there’s extra water in that reservoir and they want to get it down the stream. I am just not of that ilk.”

Heaton told the Free Press the issues are complex and he believes people need to fully understand them before they come to a decision.

“I think our primary issue is a lack of understanding,” Heaton said. The document that Suckla was concerned about, Heaton said, was a draft of a memorandum of agreement regarding the Implementation Team, not part of the legislation.

“All that was, was an agreement among different entities – water entities, county commissioners, environmental groups, fish people – to work together,” Heaton said. “It was a working draft. That was really no part of the legislation, but it was understood to be part of the legislation. I just think we’ve got to spend some time educating.

“We’re in a working group and I can understand some of the public apprehension because we’ve been at this for years. You would think we should have something done, and we’re close to having something.

I think if we can get enough out in the open for people to look at, it will help. Whenever people feel like you’re crafting something in the dark and all of a sudden it’s going to be shoved down their throats – I can understand that fear and I can appreciate it.

“We’re a pretty diverse group of people trying to look at something that will benefit and protect the values of the community. Those values go from the environmental side to the farm and ag and water side, and all of these are part of this community.”

Monumental worries

Some locals support the idea of an NCA because they are concerned that President Obama might create a national monument on the Dolores at the end of his term if nothing is done to protect it otherwise.

In February, Obama designated a new national monument in Colorado, the 21,500-acre Browns Canyon National Monument along the Arkansas River between Buena Vista and Salida.

In 2000, President Bill Clinton proclaimed the 164,000-acre Canyons of the Ancients National Monument west of Cortez after locals successfully shot down an effort to create an NCA there.

But Ertel does not believe that is a likely possibility.

“I think all of that is pure conjecture,” Ertel told the Free Press. “I don’t know that that Lower Dolores between the McPhee Dam and the San Miguel conjunction – I don’t see that as becoming a national monument.”

‘Not our first bump’

For now, the Legislative Subcommittee will continue working to bring the legislative proposal to key groups such as the DWCD and Montezuma Valley Irrigation Company, along with the broader public, according to Marsha Porter-Norton, facilitator for the Legislative Subcommittee and LDWG.

She said people should expect to see the draft legislation within a month or so.

“The legislation will be coming forth to community stakeholders for vetting as soon as possible, hopefully within two to four weeks,” she said.

“Then those who are most affected can look at a piece of legislation along with anything that relates to the legislation.

“The Legislative Subcommittee has always had a perspective that their role was to listen to people and that’s what they will continue to do. If there are concerns or substantive issues around water or otherwise, the committee will listen to those.

“The Legislative Subcommittee remains very open to hearing concerns and I believe is very open to trying to work out issues raised at the community level.”

Heaton agreed that for now the group will keep plugging away. “Absolutely,” he said. “We’ve got a lot of years in this and this is certainly not our first bump in the road.

“We’ve strived really hard to stay together as a team and continue to work through different issues, even though we’ve had some pretty opposing opinions,” he said.

“All I know to do is continue to work forward. Of course, the commissioners are a very important part of this and if they feel that they don’t want it to go forward, they’re a pretty strong voice.”

Heaton said he would prefer taking the legislative approach to the possibility of a national monument.

“I believe legislation should come from the ground up and the community and then go up to Washington. I believe that is the preferred process.

“We as humans always fear change. I can be as bad as anybody and say, ‘Just leave it alone, I like it the way it is,’ but that might not be how it would stay,” Heaton said.

“So if I can help put something in place that would protect my values while protecting some of the other values that people see, then that is what I would strive to do.”


Local groups involved in river talks

Dolores River Dialogue — The DRD is a diverse grassroots coalition whose purpose, according to its statement, “is to explore management opportunities, build support for and take action to improve the ecological conditions downstream of McPhee Reservoir while honoring water rights, protecting agricultural and municipal water supplies, and the continued enjoyment of rafting and fishing.” It meets one or two times a year.

Lower Dolores Working Group – After the Lower Dolores River was found preliminarily suitable for wild and scenic river status, the LDWG was formed to see whether an alternative management strategy could protect river values without WSR designation. The group – which includes representatives from three counties, Dove Creek, Dolores, Cortez, water managers and waterrights holders, private-property and grazing-rights owners, the Ute Mountain Ute Tribe, energy interests; government agencies, conservationists, boaters; and others – began meeting in December 2008. In March 2010 it decided that a national conservation area was a preferred alternative to the river being suitable for wild and scenic river status. It appointed a Legislative Subcommittee to work out the details.

Legislative Subcommittee – This small group has been meeting for four years to work on the details and framework of the NCA legislation. It includes representatives of Montezuma and Dolores counties, the Dolores Water Conservancy District and Montezuma Valley Irrigation Company, grazing and private-property rights, recreation, and environmental interests. The proposed NCA, which would require congressional action, is intended to remove wild and scenic river suitability from the Dolores and to protect important recreational, ecological and other values.

Implementation Team – This advisory group that includes representatives of boating and fishing interests, the Dolores Water Conservancy District, Montezuma Valley Irrigation Company, Colorado Parks and Wildlife, environmental interests, and more has been meeting since 2011. The group works on water and fish issues and makes recommendations to the Bureau of Reclamation and DWCD about ways to aid native-fish populations in the Lower Dolores.

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From March 2015.