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Protection or over-regulation? Talk of 'wild and scenic' status worries water-users
By David Grant Long
Should the lower Dolores River be considered “wild and scenic”? How about Hermosa Creek near Purgatory, or the Piedra River east of Durango. These are questions that will soon be mulled during public discussion of proposals for a new management plan for San Juan Public Lands.
Protecting “wild and scenic rivers” seems an innocuous goal at first blush. After all, what Westerner worth the price of a good hat would want them tamed and unsightly?
But in one sense we all want them tamed, because those of us living in the semi- (and increasingly) arid Four Corners are becoming ever more dependent on the water and energy supplied by managing our rivers, including the Dolores, Animas, La Plata, San Juan and Piedra — all of which have myriad users, sometimes conflicting.
Like most things pertaining to federal lands, the issues involved in determining which rivers merit wild and scenic designation — similar in some respects to a tract of territory becoming a wilderness area — are more complex and contentious than they seem.
Public-agency officials, water attorneys, water-users, even environmentalists all exude caution when speaking about wild and scenic designation. The issue is surfacing as part of a new management plan being developed by the San Juan National Forest and BLM’s San Juan Resource Area, and is scheduled to be discussed at public meetings starting in March.
From a broad list of 50-some river or stream segments considered eligible for wild and scenic listing, some will be upgraded to a “suitability” list that will be included in the final draft of the forest management plan, and they will then be managed to protect the attributes that qualified them as suitable, or what are called their “outstandingly remarkable values.”
That’s where things can grow contentious. “They may be managed as if they are already designated (wild and scenic) while you wait,” said Don Schwindt, president of the Dolores Water Conservancy District board.
Under the Wild and Scenic Rivers Act — passed by Congress in 1968 — a formal WSR designation triggers special protections that can restrict future uses of both the river corridor and the water, generally prohibiting further development such as dams or new uses and establishing a federal reserved water right.
Only Congress or the Secretary of the Interior can ultimately make a WSR designation, and there is general agreement that is unlikely in Southwest Colorado, given the current political climate in Washington. However, just placing a river on the suitability list that will be adopted as part of the final forest- management plan can in itself restrict future uses.
According to one expert, a suitability listing is akin to a Wilderness Study Area designation, which dramatically limits uses of those public lands.
In order to be eligible for WSR consideration, a river or stream segment must be generally free-flowing and must possess at least one ourstandingly remarkable value such as scenery, recreation, geology, fish and wildlife, or historic or cultural resources. Planners have narrowed streams on the San Juan National Forest to a draft list of 54 eligible segments.
“We have a draft list of the segments that have the outstandingly remarkable values that would make them eligible,” said Kay Zillich, a forest hydrologist working on that part of the management plan. That draft list has begun to be distributed to the public, and public meetings in Cortez, Durango and Pagosa Springs are tentatively planned in March, although dates and locations were not available.
A few of the stream segments on the list are:
- The Dolores from McPhee to Bedrock, for recreation, geology, endangered fish and special plant communities;
- The Animas from Silverton to Bakers Bridge, for whitewater rafting and scenery;
- Hermosa Creek and its tributaries, for recreation and native Colorado River cutthroat trout.
“We’ll ask people to comment on that selection of rivers and tell us if we really missed it as far as those outstandingly remarkable values,” she said. “If there’s factual stuff we messed up on, they could certainly give us input on that.”
In addition, Zillich said, “we’ll be asking folks what are the competing values on those rivers — what opportunities we would miss out on if they were designated a wild and scenic river,” such as additional dams and reservoirs or other diversions.
Alternatives to WSR designation that would adequately protect the rivers will also be explored, she said. For example, if a river has archaeological sites along its corridor, a WSR designation probably wouldn’t be needed to protect them.
“Even our archaeologist says that that current laws regarding heritage resources are sufficient to protect those values,” she said. “You don’t need wild and scenic in addition.”
The goal will be to narrow the eligible streams to a list of “suitable” waterways that could theoretically be managed as WSRs without sacrificing major projects. That list will become part of the final forest plan.
What measures should be taken to protect a “suitable” stream segment depend on what special values it has. More water may be needed to protect a population of native cutthroat trout, for instance, than to protect geologic features.
For stretches of river valued for recreation, Zillich said, there might be very few restrictions.
“Those can have parallel roads and railroads, and residential and occasional commercial development on the banks of the river,” she explained. “That’s not very restrictive at all.”
Zillich said no federal reserved water right is established unless a river is formally designated a WSR, and that is a rare occurrence. Colorado has just one WSR, the Poudre near Fort Collins.
However, some environmentalists would like to see that number increase.
Chuck Wanner of the Durangobased San Juan Citizens Alliance said the group would initially focus its efforts on getting Hermosa Creek north of Durango on the suitability list and then possibly into discussions of a WSR designation.
“That's the (river) we wanted to talk about first,” he said. “It’s got several outstandingly remarkable values, but the two that come to mind first are the water quality and the fishery. It would be a good, small basin to start a discussion on.”
SJCA is focusing mainly on the upstream part of the river that flows through national-forest land, he said, and believes the chances of it being included on the suitability list are “quite good.”
Another river frequently mentioned as having high WSR potential is the Dolores. But deciding which stretches of the lower Dolores might be suitable is a complicated problem that will take more time to address, Wanner said.
“We believe the studies that were done in the past were probably correct and there’s a lot of river that should be considered down there,” he said. “We’re just trying to talk to folks to arrive at better flows for downstream at this point — that’s a big river and there are a lot of interests involved.”
Schwindt said water-users would be concerned about the possibility of any such designation for local rivers. “Wild and Scenic designation has a lot of significant problems with water management in this state,” Schwindt said. “We don't know how serious our concerns are on the lower Dolores.”
Zillich pointed out that, in the forest plan adopted in the mid-’80s, the Dolores River below McPhee Dam and the main and middle forks of the Piedra River were already on the “suitable” list and have thus been managed by the USFS for years as if they were wild and scenic. The Dolores, West Dolores, Piedra and Pine rivers were recommended for WSR status in legislation in 1976.
“Whatever (the users) have been doing to the river so far is enough to support the outstandingly remarkable vaues we picked out, which are some special plant communities and some gorgeous scenery,” she said. “So people have this history of what it's like to live with one of these that's recommended suitable in a forest plan, and I don’t think it’s as much of an issue as some of our constituents think it is.”
But Schwindt remains wary of the “suitable” label. “That’s why things get arguable as to what’s the impact of that — I've heard the Forest Service planners say, ‘This is no different than they've been in the last forest plan,’ and there was no problem as far as I know in what’s occurred driven by that, but my guess is that there are nuances there that make those statements maybe not untrue, but skewed.”
Beyond restricting future development, Schwindt said, the designation “limits management, maybe more than just dams and development — there may be implications way beyond that.”
Schwindt questioned whether it is necessary that a suitability list even be made part of the final forest plan; some other forests choose only to make an eligibility list.
Open to interpretation
He said future management of the rivers that make the final cut will be “open to interpretation by those folk who may choose to bring political pressure” to further restrict their uses.
Such pressure could make obtaining permission for legitimate uses a protracted struggle, he said.
"My concern is simply on this state’s ability to manage its water resources, and management means many different things besides potentially just a dam — maybe things that are extremely important to adding to the value of the lower Dolores.”
Schwindt is a member of the Dolores River Dialogue, a group of water-users and stakeholders with different interests and priorities that have been discussing alternatives to WSR listing to protect and enhance the river.
Three things being discussed to improve the lower Dolores are management of the spill (the amount of water released from the dam at different times of year), the base-flow rate below the dam and possible in-channel work to improve that stretch of the river. “We might land on any or a combination of those three,” he said.
A WSR designation could alienate some of the participants in those discussions, Schwindt said. “You lose the impetus and coalition-building that’s been built to date.”
Wanner declined to discuss the WSR issue in detail, but said he hopes something can be worked out to protect the streams’ special qualities.
“We think (the San Juan National Forest) made some good choices on the eligible list and we'll be following the suitability process and participating,” Wanner said.