The Upper Ark district protested the expansion of the Badger Creek water right at a March meeting of the CWCB in Canon City. In the months since, Assistant Attorney General Amy Stengel and Trout Unlimited attorney Drew Peternell have argued that no augmentation water rights are at risk by increasing the in-stream flow rate to 5.5 cubic feet per second (about 3.5 million gallons a day) from the current 3 cfs (about 1.9 million gallons a day). http://www.chieftain.com/metro/1194623125/8

By CHRIS WOODKA THE PUEBLO CHIEFTAIN

A small stream in western Fremont County is causing a big ruckus as the state ponders expansion of a water right to protect its flows.

Expanding the water right on Badger Creek, a 30-mile-long stream near Howard, to include higher flows is supported by the Bureau of Land Management, Colorado Department of Wildlife, Trout Unlimited and other environmental groups.

The move is opposed by the Upper Arkansas Water Conservancy District, which says increasing protected flows for Badger Creek could impede augmentation plans for future wells in unspecified locations.

The Colorado Water Conservation Board, the agency which approves in-stream flows, will consider the Badger Creek issue again at its meeting next week. A three-hour block for a hearing is scheduled to begin at 3:30 p.m. Nov. 14, at the Golden Hotel, 800 11th St., Golden.

The Upper Ark district protested the expansion of the Badger Creek water right at a March meeting of the CWCB in Canon City. In the months since, Assistant Attorney General Amy Stengel and Trout Unlimited attorney Drew Peternell have argued that no augmentation water rights are at risk by increasing the in-stream flow rate to 5.5 cubic feet per second (about 3.5 million gallons a day) from the current 3 cfs (about 1.9 million gallons a day).

"We don't think there is that much water there every year," said Terry Scanga, general manager of the Upper Ark district. "All we're asking for is that they provide a number that won't take the whole flow."

Upper Ark said its augmentation plan incorporates a flow of 0.25 cfs (about 160,000 gallons a day) and suggested a "variable decree" that would account for that amount, Scanga said.

"I guess it's a matter of when is enough, enough, to maintain a good habitat?" Scanga said.

Stengel, in her brief to the CWCB, says the state's calculations of the flow of the creek show that the flow of Badger Creek exceeds the Upper Ark's potential domestic water supply requirements more than half of the time, with roughly enough water to sustain 117-900 homes, depending on lawn irrigation.

Beyond the simple water availability, however, the state said the water would preserve a natural environment in a 17-mile reach of the stream below a perennial spring. The Upper Ark also has not demonstrated how the proposed state water right would injure its right, Stengel said.

"The subject reach of Badger Creek is an exceptionally pristine section of stream supporting a thriving brown trout population," Stengel wrote, adding that 90 percent of the stream is on public land.

In its statement, Trout Unlimited pointed out the expansion of the in-stream flow would be junior to existing rights held by the Upper Ark.

"It's speculative. What they're really doing is protecting future growth in the upper reaches of Badger Creek," Peternell said. "The Upper Ark is protecting hypothetical future users, but this does nothing to injure their water right."

The Upper Ark is arguing the stream is intermittent in stretches, even below the spring, which is disputed by the Division of Wildlife and Trout Unlimited.

Reed Dils of the Collegiate Peaks Chapter of Trout Unlimited said there are occasions when flash floods move debris to some sections of the stream and temporarily "bury" them, but the flows of Badger Creek soon cut the channel again. A big flood in 2004 disrupted part of the stream, but Dils was able to find fish above and below the point before and after it reopened.

"It's an extraordinary place, and an in-stream flow is needed," Dils said.

The BLM has worked for years with Fremont County residents to protect the public lands on Badger Creek by cleaning up the area and restricting motor vehicle access.