Western & Colorado Water Project Staff Notes

 March 2008  Trout Unlimited spent more time working on high level Colorado water policy -- helping draft visioning documents for the state's water committee, as well as working with staff and colleagues on a letter to the state about its role in funding non-traditional water projects with partial state ownership of the water rights. 

We worked on producing some new Conservation Success Index type maps looking at restoration priorities based on projected climate change impacts as well as the costs of restoration for Colorado River cutthroats. 

We did yet another talk on Rapanos, the US Supreme Court's decision that muddied the waters about the reach of the Clean Water Act. 

Staff wrote comments for TU to the committee overseeing potential water court reform in Colorado, and met with one of the state's water referees who is helping TU by asking the same kind of questions we do for water rights applications where there are no opposers. 

TU and the other parties to the Colorado water court proceedings to quantify the Black Canyon reserved water right are engaged in mediation. The court has stayed proceedings until April to allow negotiations to continue. 

TU and others from the conservation community have helped to draft a bill that would that would more closely tie land use development (growth) to sustainable water supplies. 

The Bureau of Reclamation (BOR) has released its Environmental Impact Statement (EIS) on Colorado Springs Southern Delivery System. The Water Project is working on preparation of comments on the EIS and will be discussing mitigation measures with BOR and Colorado Springs. 

We have been advocating for three bills to strengthen the instream flow program in the 2008 legislative session. The bills are in the General Assembly process. 

TU brought five Instream Flow (ISF) recommendations to the Colorado Water Conservation Board’s Instream Flow workshop. These were offered in cooperation with the Colorado Department of Wildlife (CDOW) and represent beginning of a year-long process that, hopefully, will end with ISF appropriations.  

We are cooperating with the Dolores River Dialogue and the Colorado Division of Wildlife to look at the potential for doing some in channel restoration on the Dolores River below McPhee. Water Project staff and the CDOW are going to collect some pre- and post-spill data on sediments and channel morphometry to determine whether or not the extensive armoring can be reduced with substantial floods alone.

Trout Unlimited to Consider Southern Delivery System at March Meeting

The potential recreational and environmental effects of the planned Southern Delivery System pipeline from Pueblo Dam to Colorado Springs will be the topic under discussion at the March 13 meeting of Trout Unlimited in Pueblo. Drew Peternell, Colorado Trout Unlimited’s lawyer and the Director of the Colorado Water Project, will address concerns about the pipeline as it is currently presented in the Draft Environmental Impact Statement. See Southern Delivery System EIS.  This is an important meeting to the future of recreation on the AK River through Pueblo! Please attend, if at all possible!

 THURSDAY, March 13, 7:00 p.m.

 Jones-Healy Realty, 119 W. 6th, Pueblo

 Everyone welcome - FREE to the public. Donate a raffle item to defray chapter expenses

Dry Gulch Reservoir litigation continues, briefs filed

 As litigation surrounding the Dry Gulch Reservoir continues, two local water districts and Trout Unlimited (TU) have now filed response briefs with District Court, Water Division Seven, State of Colorado.http://www.pagosasun.com/frontpage.htm#Anchor-Dry-47857

More briefs filed in reservoir litigation

http://www.pagosasun.com/frontpage.htm#Anchor-More-39590

By Chuck McGuire Staff Writer As part of ongoing litigation surrounding the proposed Dry Gulch Reservoir, two local water districts and Trout Unlimited (TU) have filed additional briefs with District Court, Water Division Seven, State of Colorado.In a majority decision issued in October, the Colorado Supreme Court ruled in favor of a TU appeal, which challenged water diversion and storage rights originally granted to the San Juan Water Conservancy District (SJWCD) and Pagosa Area Water and Sanitation District (PAWSD) by Judge Gregory G. Lyman in September 2006. Upon granting the conditional rights, Lyman paved the way for the districts’ development of Dry Gulch, a 35,000-acre-foot reservoir approximately two miles northeast of Pagosa Springs. Proponents of the project suggest it will meet area water needs to the year 2100.In its October ruling, the high court cited precedent established upon review of prior water court cases, including “City of Thornton v. Bijou Irrigation Co. (Colo. 1996).” Based on that case, the court wrote, “A governmental agency need not be certain of its future water needs; it may conditionally appropriate water to satisfy a projected normal increase in population within a reasonable planning period.“The governmental agency does not have carte blanche to appropriate water for speculative purposes. Accordingly, the governmental agency has the burden to demonstrate that its conditional appropriation is not speculative.”Citing another segment of Bijou, the court stated, “Only a reasonable planning period for the conditional appropriation is allowed. In Bijou, the water court’s findings of fact addressed what constitutes a reasonable water supply planning period, fifty years in that case, and found the existence of substantiated population and water use projections.”The Supreme Court added, “In accordance with the applicable statutory and case law requirements identified in this opinion, the water court should examine the evidence utilizing the elements applicable to determining whether the districts have met their burden for a non-speculative conditional appropriation, accompany its judgement with sufficient findings of fact based on the evidence, and fashion appropriate decree provisions, which may include ‘reality checks’ and volumetric limitation provisions for the districts’ conditional appropriation. The water court must also make factual findings concerning whether the districts can and will place the claimed amount of unappropriated water to beneficial use within a reasonable time.“Accordingly, we reverse the water court’s judgment, set aside the conditional decree, and remand this case for further proceedings consistent with this opinion. The water court, in its discretion, may take additional evidence and argument as it deems appropriate on remand.”Upon review of his and the Supreme Court’s findings, Judge Lyman ordered both sides to submit briefs “on remand.” Attorneys representing the opposing arguments did so on Monday.In its brief, TU urged the court (Lyman) “to make finds of fact on the Districts’ planning period, future population, per capita water usage, current water supplies and future demand for Dry Gulch system water.”Additionally, TU asked, if the court finds that there will be demand for Dry Gulch project water during the planning period, that it admit additional evidence regarding the water rights necessary to serve that demand. Further, TU suggested that even if the court accepted the districts’ demand projections, it could not decree the claimed water rights, because the amounts exceed what is reasonably necessary to meet the districts’ demand projections, and are not premised on actual water availability conditions.In its argument, TU expressed the following beliefs:• The court should determine the districts’ reasonable planning horizon at no later than the year 2040.• Districts’ population estimates by 2040 should be no greater than 34,291 people.• The districts will demand no water beyond their current supply to serve the population in the planning period.In their brief, the districts affirm a belief that the court has already heard adequate evidence to make the findings identified by the Supreme Court in its opinion, and to grant the conditional water rights requested. They do ask, however, that if the court believes additional evidence is necessary, that it schedule additional trial time to take such evidence.Meanwhile, the districts “have closely examined their projected water demands, and have chosen to reduce their conditional water rights claims in the interest of swiftly concluding the remand proceedings.”Following are the claims the districts are willing to reduce from their original application:• Diversion to storage from 200 cubic feet per second (cfs) to 100 cfs. • Initial fill from 29,000 acre-feet (ac-ft) to 23,000 ac-ft. • Annual storage limit from 64,000 ac-ft to 29,000 ac-ft. • Direct diversion from 80 cfs to 50 cfs. • Priority date from Mar. 14, 2000 to Dec. 20, 2004. • No reuse to extinction. • Add reality checks.The districts also suggest a 70-year planning period is appropriate under the facts and circumstances of this case. Further, they believe population projections are substantiated, based on normal rates of growth, and the amount of unappropriated water claimed is available and reasonably necessary to serve future water demands.The districts also contend that Dry Gulch will not adversely impact the San Juan River, “because once filled, only the actual annual water needs will be diverted, reserving the balance of total storage for periods when diversions are unavailable.” Additionally, they have proven under the “can and will” test that there is a substantial probability that the project can and will be completed with diligence, and the conditionally appropriated water will be put to beneficial use within a reasonable period of time.At their regular monthly meeting Tuesday, PAWSD officials couldn’t say how long Judge Lyman might take to review the briefs, or whether he would seek more evidence and set another trial date. PAWSD manager Carrie Weiss did, however, voice deep disappointment in the duration and mounting costs associated with the case, and expressed hope that the matter would be resolved soon.

Western & Colorado Water Project Staff Notes

February 2008  We gave two more presentations on the bog of Clean Water Act jurisdiction, and while it's clear that everyone thinks the system is a mess, we do not all agree on what the fixes are, which is one reason that the Clean Water Restoration Act is not moving in the House. The courts, meanwhile, have not been uniform in their rulings, but have ruled in a way that would harm the environment in only a very few cases (most recently in the 11th Circuit regarding Avondale Creek, but early on in one case in the 9th Circuit, which has otherwise done a pretty good job). 

TU and the other parties to the Colorado water court proceedings to quantify the Black Canyon reserved water right are engaged in mediation. The court has stayed proceedings until April to allow negotiations to continue. 

TU and others from the conservation community have helped to draft a bill that would that would more closely tie land use development (growth) to sustainable water supplies. 

The water court judge in the Dry Gulch remand has ordered the parties to submit briefs outlining positions on how the case should be decided. 

We have been preparing written testimony on Bear Creek, a semi-urban trout stream in the transition of the South Platte that is going to be removed from the 303(d) list. This stream is particularly prized by the local chapter of TU who have done extensive restoration work on the stream. Our testimony focuses on the need for continued vigilance on the part of the state, especially given that the improvements that have been observed in the fishery since the stream was originally listed have been short-lived. 

We are evaluating available information on the Windy Gap Firming process in anticipation of the upcoming draft EIS. 

We will be advocating for three bills to strengthen the instream flow program in the 2008 legislative session. The press release for the bills can be found at: http://www.cotrout.org/News/MediaRoom/TULegislativeAgenda/tabid/249/Default.aspx 

We are working on sheepherding last year’s Instream Flow (ISF) proposals through the Colorado Water Conservation Board (CWCB) and preparing to bring 5 more streams forward in conjunction with the Colorado Department of Wildlife at the CWCB’s February ISF workshop.

Colorado looks at water leases, donations to increase river flows

By COLLEEN SLEVIN Associated Press Writer

Article Last Updated: 01/30/2008 05:54:30 PM MST

DENVER—Colorado lawmakers are looking at ways to encourage people to donate or lease water rights they're not using to increase the amount of water in the state's rivers. The aim is to make rivers and their fish healthier and support the state's recreation industry.The current law isn't clear on whether people would forfeit their water rights by leasing extra water to the state so it can flow downstream when they don't need it. To encourage leases, Rep. Randy Fischer introduced a bill Wednesday to clarify that they won't give up their rights.

Lawmakers are also working on bills that would give tax credits to people who let their unused water flow downstream and to give the state water conservation board $1 million to buy or lease rights to water that it can then allow to flow rather than be diverted.

The board is the only body allowed to hold such instream rights, as opposed to water rights in which water is taken out of the river to irrigate crops or support cities. Currently, it doesn't have any money to buy the rights or pay the legal fees for people who want to donate or lease their unused water.

All three bills are backed by Trout Unlimited and Environmental Defense, which released a study Wednesday saying that increasing instream flows would add another $4.4 million a year to the state's economy because of increased rafting and fishing. The study was paid for by Environmental Defense.

Mitch Kirwan, co-owner of Mo Henry's Trout Shop in Fraser, said it will become more difficult for fish to thrive in the Fraser River, especially in warm weather, if more water is diverted to the populous Front Range.

Kirk Klancke, who manages the water district for a nearby subdivision, said the development has rights to water it needs to provide for future development but doesn't need now. He said the district would like to let the water flow downstream to help fishermen and others who use the river but, fearing the district would lose its rights, each year he uses the extra water to irrigate part of an old ranch.

Kirwan said adding more water to mountain rivers like that would help his business besides helping the environment.

"It's a huge boon for the economy of the mountain areas," Kirwan said.

State to Consider Water Measures

Conservationists say water bills are vital to rivers and streams http://www.durangoherald.com/asp-bin/article_generation.asp?article_type=out&article_path=/outdoors/out071228_2.htm

This Durango Herald legislative preview features Drew Peternell, director of National TU's Colorado Water Project

Western & Colorado Water Project Staff Notes

January 2008   The Clean Water Restoration Act is legislation that TU would like Congress to pass. Over the last year, Colorado's delegation has been lobbied heavily by the Farm Bureau and developer interests who are staunchly opposed to ensuring that there will be Clean Water Act permitting requirements in the small streams of the West. We've been spending some time trying to figure out whether the bill's opponents are simply against it, period, or whether there might be room for compromise. We have two public speaking engagements on this topic (both point-counterpoints) later this month. 

The Nature Conservancy is pitching a big Colorado River restoration project. So, with TU Conservation Success Index maps in hand, we sat down with TNC staff to see about how we might be able to collaborate on an Upper Colorado River restoration effort that would focus on Colorado River cutts as well as terrestrial and plant species of concern for TNC. 

We spent a day in meetings trying to move the ball forward on Colorado's effort to map, prioritize and quantify flows for environmental needs. Consultants discussed the methodologies available to do both reach specific and stream type quantifications. There was supposed to be an additional meeting with the whole Inter-Basin Compact Committee on this topic, but that meeting was cancelled because of snow, so what isn't clear is what folks think about the process. Meanwhile, we are working with CTU and others on an effort to map the priority reaches where water acquisition will be necessary to protect instream values. 

The fact that the regulation of water development is entirely separate from the regulation of land development is becoming a more and more obvious problem in the West. Interestingly, it isn't mostly the conservation community that's voicing concerns over the lack of coordination in the two. A Colorado legislator will be running a bill this session to increase integration a tiny bit. 

We welcomed John Gerstle to the Boulder office. John has spent the bulk of his career working as a water consultant in the private sector, and recently he has consulted for TU on coal bed methane water quality regulations in Wyoming and two of our successful water rights oppositions in water court. He will continue to work on produced water issues for TU. In addition, he will work with water project staff in Colorado, Idaho and Wyoming on a variety of water matters. We're excited to have him here. 

The water court judge in the Dry Gulch remand has ordered the parties to submit briefs outlining positions on how the case should be decided. 

TU and the other parties to the Colorado water court proceedings to quantify the Black Canyon reserved water right are engaged in mediation. The court has stayed proceedings to allow negotiations to continue. 

At the request of the Evergreen Metro chapter, we have been working to determine how best to respond to the Colorado Water Quality Control Division’s decision to remove Bear Creek from the 303(d) list. An analysis of the fishery data indicates that the stream has substantially recovered. This analysis was substantially similar to the conclusions reached by the Colorado Division of Wildlife. Based on it we chose not to oppose delisting the stream but are nonetheless voicing our continuing belief that the stream is precariously perched and that temperature remains a serious threat to the continued health of the fishery. 

We are conversing with The Nature Conservancy and providing input on their efforts to develop flow regime for the North Fork of the Poudre. This regime is being proposed as part of the shared vision process for the Halligan-Seaman expansion. Because TNC has land on the stretch of river between the two reservoirs, they have taken the lead on developing the flow regime target. We are reviewing their work and providing comments in the hope that we can speak with one voice when their vision of what a flow regime should like is presented. 

We are also working to advance the instream flow recommendations TU brought forward last year with the Division of Wildlife and which will be voted on later this month. In addition, we are working to prepare some new recommendations with the Division of Wildlife and with the Bureau of Land Management. 

We are analyzing existing temperature data to help the Colorado Water Quality Control Division improve their map of summer stream temperatures. This map is used to help predict what species are expected to occur in the various streams of Colorado and thus what water quality standards are applicable. 

We continue to prepare for the upcoming basin-wide temperature hearings. Although state-wide standards were developed last year, they are being applied in a basin by basin process that begins with the Colorado River Basin.

Try fishing other side of Yucatán

http://origin.denverpost.com/headlines/ci_7755693 By Sam Bacon

Sam Bacon, a former Rio Grande guide, is a law student at the University of Colorado and an intern for the Trout Unlimited Colorado Water Project.

Special to The Denver Post

CAMPECHE, Mexico — The guides of Campeche were huddled on the pier in the predawn darkness, Pangas loaded with gas, drinks and lunches for a full day of scouting the west coast of the Yucatán Peninsula for baby tarpon.

After just 10 minutes at full throttle, head guide Neko Pastrana motioned with a flick of his hand to cut the motor. As the boat settled in the water, still dark beneath a purple sky, we jumped to our feet to see if we could discern what had caught his attention. The slick, black backs of a school of tarpon were visible a ways off, slicing through the dead-calm water.

My dad, Todd Bacon, grabbed an 8-weight and stripped out line onto the deck as quickly as he could. One long cast to check his distance and to recoil the line properly on the deck, and he was ready. Holding the fly in one hand and the rod in the other, he waited as Neko poled silently across 8-foot deep water to intercept the school.

"Cast!" came the command as we neared the school. The streamer landed short of the visible fish, but Neko exhorted, "Strip! Strip!"

Todd made quick, short strips until the line stopped abruptly, and he then sent a hard strip-strike the length of the line to set the hook. The stillness of that morning was broken by a 25-pound silver beauty arching its way 4 feet into the air and crashing back into the sea. Up again it came, and again and again, spending its energy going vertical into the Mexican dawn. After a 10-minute fight, the fish was released, and the morning was off to a heart-pounding start.

Regardless of how many tarpon one has boated, it is impossible to step up onto the casting platform in the early-morning light without an all-encompassing sense of nervous alertness. It's a rush that is totally addicting. My dad and I had made this trip last year, and we wanted to feel that rush again.

Far off the tourist track Campeche, on the Gulf of Mexico side of the Yucatán Peninsula, is a full day's journey from Denver, flying via Houston to Merida, then a two-hour drive. It is a bustling city of 400,000 people, with an old city center and a modern city built around it. In total contrast to Cancun on the opposite coast, Campeche is relatively untouched by "Yanqui" influence.In fact, this city is so far off the tourist track that hardly anyone speaks English. In place of the hotel strips of Cancun are the forts of San Miguel and San Jose, marking the town's 500-year-old origins as the coast's lone protection from pirates. Narrow streets are paved with cobbles borrowed from old city walls. Row houses and stores are painted in Mexican pastels of lime, yellow, azure, coral and peach. The Spanish colonial feel extends to the simple cafes and restaurants surrounding the center plaza and adjacent cathedral.

To fish for Campeche's baby tarpon, we came equipped with three rod: two 8-weights and one 10. These babies — 8 to 40 pounds — are no different from their bigger relatives in the Keys, either in terms of feeding behavior or initial fight. Their sleek, black silhouettes often are visible from afar, sometimes too visible, as they allowed us so much time to get ready that our anxious casts fell off the mark. But a missed cast does not necessarily signal the end. Schools where only a few fish are visibly breaching the surface for air, known as greyhounding, often hold 40 or more fish just below the surface. Much of the time is spent slowly poling along the edge of the mangrove coast, searching for cruising pods of tarpon and blind-casting into likely pockets.

Casting to create chaos I can think of no more exciting moment in fishing than seeing a wake break from the course of the school to chase a quickly stripped fly. A violent strip-strike and the aerials begin. Campeche's baby tarpon jump just like all tarpon, panicked and uncontrolled, yet majestic and explosive. Instead of mortgaging the next hour of the day hauling up a tired log of a fish from the bottom, however, the average fight is closer to 10 or 15 minutes.Shorter fights mean more time to experience what is perhaps the area's best attribute: the diversity of fishing opportunities that it offers. While tarpon are the only target species, the days consist of probing either the offshore flats that are 7 to 10 feet deep and up to a mile off the shore line, the mangrove edges that stretch for endless miles north of town or the "rios." The rios are brackish streams that drain the peninsula and hold powerful fish in some of the most surreal environments I've ever seen, in or out of fishing.

One afternoon, we grabbed mangrove branches to pull the boat through a gap in the vegetation. The passage opened onto a clearing no bigger than a boxing ring. A floor of golden sand betrayed four or five 'poons that were languidly patrolling the recess.

With no time to free up line and no room to backcast anyway, I resorted to my favorite high-country stream technique: the bow-and-arrow cast. With an 8-weight. For a 15-pound fish. The ensuing fight was pure chaos, but what a unique and bizarre opportunity, available only in Campeche.

Western & Colorado Water Project Staff Notes

December 2007  

We are continuing to work with TU staff and others on trying to keep the Congressional effort to fix the Clean Water Act's jurisdictional scope moving forward. 

We helped think through a session for Environmental Grantmakers Association upcoming meeting on the State of the States, as a result of which they will be having a panel on how climate change affects a number of issues, including water allocation. 

TU and the other parties to the Colorado water court proceedings to quantify the Black Canyon reserved water right are engaged in mediation. The court has stayed proceedings until middle of January to allow negotiations to continue. 

TU and others from the conservation community are talking with a West Slope legislator about a bill that would that would more closely tie land use development (growth) to sustainable water supplies. 

At the request of the Evergreen Chapter, Water Project staff have been reviewing the decision by the State to remove Bear Creek from the state’s Monitoring and Evaluation list. We have completed a review of the existing fish, temperature, and macroinvertebrate data from Bear Creek. This analysis will be used to guide our next steps. 

We will be advocating for three bills to strengthen the instream flow program in the 2008 legislative session. In advance of the session, we are meeting with numerous parties to discuss the legislation and concerns. 

Water Project staff are working to develop instream flow recommendations for approval by the Colorado Water Conservation Board based on data collected with the BLM and with CDOW. 

The Water Project has been collaborating with The Nature Conservancy to develop robust flow management targets for the North Fork of the Poudre. This is being done in conjunction with the Shared Vision Process for the Halligan and Seaman Reservoir expansion projects. We are hopeful that the enlargement of these two buckets will enable managers to more consistently provide reasonable environmental flows.