NCA talks begin: A water attorney says a conservation area could help constrain federal agencies and protect rights

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PROPOSAL WOULD CREATE NATIONAL CONSERVATION AREA ALONG DOLORES RIVER CORRIDOR

A proposal to create a National Conservation Area along the Dolores River corridor from McPhee Dam downstream to the confluence with the San Miguel River is drawing fresh attention as a discussion draft of NCA legislation has been released. Photo by Wendy Mimiaga.

The choices are simple when it comes to making decisions on managing the water and federal lands along the Lower Dolores River, an expert told a group of concerned citizens Sept. 30 in Cortez:

One, do nothing and then “scream like banshees” if they don’t like the policies are laid down by federal bureaucrats, who adhere strictly to mandates previously passed by Congress.

Or, craft legislation carefully tailored to address the specific concerns of various area stakeholders, which would then be shepherded through Congress by local representatives.

“It’s far better to take control and form compromises among (competing local) interests,” said water attorney and legislative expert David Robbins, who has been successfully addressing such issues for more than three decades. Robbins, attorney for the Rio Grande Water Conservation District, represented the Dolores Water Conservancy District in its negotiations decades ago with the two Ute tribes over water rights. He also was involved in the U.S. Supreme Court water- rights case of Kansas vs. Colorado.

“Our elected officials much prefer to get a positive message, ‘This is what we would like to do – can you help?’, rather than, ‘This is what we hate, make them stop!’,” he said.

For several years, representatives of the four Colorado counties through which the Lower Dolores runs and the water districts that portion out its flow, as well as agricultural, wildlife and environmental groups, have been attempting to take such proactive measures. Among their concerns are the possibilities that the Dolores could be designated as a Wild and Scenic River, which would scotch any future development and require a new federal water right, or that President Obama might unilaterally declare the scenic river corridor a national monument, which could result in top-down management prescriptions.

A third looming concern is the possibility that one or more of three native fish species in the Lower Dolores could be designated as endangered or threatened, potentially leading to a taking of water to preserve their habitat.

A Legislative Subcommittee appointed by members of the grassroots Lower Dolores Working Group has been meeting since 2010 to create an alternative – a bill containing locally crafted provisions to form a National Conservation Area on the corridor.

When the discussion draft of the bill was finally released earlier this year, Robbins was hired to review it with a particular eye to its water-rights protections, and recommend possible improvements, after dissension threatened to end the effort.

In particular, the Montezuma County Commission passed a resolution in February stating its opposition to the creation of an NCA, even though the other affected counties – Dolores, Montrose and San Miguel – were on board and the draft bill had not been widely disseminated.

A relatively small portion of the NCA would be in Montezuma County; most of it would lie within the other three counties.

At the public meeting Sept. 30, Robbins pointed to the Rio Grande Natural Area in the San Luis Valley as an example of a locally driven legislative effort that was successful in warding off a Wild and Scenic designation for that river, and one that guarantees farmers water rights to irrigate their crops.

Robbins was instrumental in that effort and said “it worked out slick.”

“We took Wild and Scenic off the table,” he said. “We don’t have to worry about that any more.

“If you sit back, it will happen, and in a way you don’t like.”

But some audience members remained skeptical about whether an NCA would truly be beneficial or whether it would lead to unintended consequences.

One man said whether a Wild and Scenic River is designated or an NCA, Congress ultimately turns management over to the BLM, which will have its own management plans, and furthermore, the agency may not have adequate manpower to oversee the area appropriately.

Robbins said inadequate funding is a problem whether or not the corridor gets a special designation.

As to management, he said, “The BLM is already in charge.” The river has already been found “suitable” for Wild and Scenic designation and there are areas that have already been found suitable for wilderness designation.

“If Congress decides for those, then you have something you don’t like.”

The NCA legislation is designed to offer guidance to the federal agencies on how they manage the area and give protections for water rights, private inholdings, and more.

Some citizens asked why the area was to be called an NCA. Robbins said it doesn’t have to be.

“You pick a vehicle, I don’t care what you call it, but I say it’s best to pick a vehicle that is as neutral as you can.”

NCAs are neutral because they don’t come with a set of congressionally mandated standards that must be met, such as wilderness areas and Wild and Scenic Rivers, he said. “NCA is a good term to use; it’s a name that Congress understands and recognizes.”

One man asked whether it would accomplish anything to create the NCA to try to protect water rights when there are discussions going on regarding two river reaches downstream that might ultimately be named Wild and Scenic. “Can they reach up through the NCA to take water from the Dolores Project?” the man asked.

Robbins said if downstream Wild and Scenic River segments are approved by Congress, the managing agency could indeed seek additional flows from McPhee, but the NCA legislation could try to address this and preclude it.

Another question concerned the possibility that the locally drafted bill could be totally rewritten by a congressional committee and turned into something locals would not want.

Robbins said it would be important to stay abreast of what was happening to the bill in committee, but that generally bills wind up being close to what the communities wanted. “People in Washington respond to the community requesting something be done,” he said, and local congressional representatives in particular want to make sure they are pleasing their constituents.

If the bill truly does morph into something quite different from its original intent, he said, it can be pulled.

“Look at your cards and decide how to play them,” he said. “You can kill the bill.”

But, he added, “something is already being done” on the landscape, since it has a Wild and Scenic “suitability” designation and has drawn interest as a possible national monument.

“The only way to change that is a community solution.”

In response to concerns that the NCA would somehow result in a loss of water rights, Robbins said there is no threat to senior water rights from any of the legislation’s provisions.

“The danger is down the road,” he said.

“Part of the purpose is to take away a risk you identify which currently exists because of the ‘suitability’ determination that exists today. We’re trying to mitigate that, not increase it.”

Cole Crocker-Bedford, a member of the Legislative Subcommittee, pointed out that the Wild and Scenic Rivers Act allows for condemnation of water rights to benefit any designated rivers.

“That’s reason to give direction to Congress,” Robbins said. “You want to address this issue of condemnation in your legislation.”

Robbins was asked how long it would take to get an NCA bill through Congress. He said in “the old days,” it might have taken three to five years; in the current state of politics, he has no idea.

Some in the audience then questioned whether a federal designation might be made before the legislation could be passed.

“Congress won’t pass a Wild and Scenic River designation if the Colorado delegation is pursuing a separate approach,” Robbins said. And although the President can designate a national monument under the Antiquities Act without congressional approval, Robbins said, if the community as a whole were supportive of a legislative approach, “I would think it highly unlikely they would designate a national monument while that process was going forward.”

Other audience members questioned provisions in the draft legislation describing the creation of an advisory council to write the NCA’s management plan. Although the draft provides for members to represent a variety of interests, they are still to be appointed by the Interior Secretary.

Robbins said the legislative language could be altered to provide that governor would appoint the nominees, or it could contain specific provisions designed to narrow down who could be appointed.

“You can say, ‘There must be a cattle rancher from Montezuma County,’ but you still can’t get absolute assurance that the person you want will be selected,” he said.

It was then argued that this could mean giving up local control.

Robbins said he was not trying to give the impression that the NCA legislation would somehow bring about local control.

“You’re attempting to provide constraint and guidelines to federal officials who already have obligations you don’t like,” he said. “It’s a federal agency. This is the way to have local input and local concerns address in federal legislation. It’s a federal bill to constrain how the federal agencies can act.

“It’s not that the local officials get to tell the federal managers what to do with federal property.

“You would not like the state legislature to pass a bill saying that the federal manager gets to name people who sit on the county planning commission, and federal management doesn’t like the idea that county commissioners will appoint people to manage federal lands.”

John Porter, the chair of the Southwestern Water Conservation District, which provided the bulk of the funding for Robbins’ legal review, said the draft legislation will now be sent to the Dolores Water Conservancy District and Montezuma Valley Irrigation Company boards, as well as the county commissions of the four affected counties, for their consideration, to see whether they want to move forward.

“This is in my view an interesting, challenging, fun process,” Robbins said.

He added that if people are concerned about the current situation and potential designations on the Lower Dolores, they need to work with those boards and share their concerns with them.

“You’re not going to solve it by choosing up sides and not compromising with anyone,” he said.

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