State seeks in-stream rights for Garfield County streams
Post Independent Staff
GLENWOOD SPRINGS — Representatives from three state agencies told the Garfield County commissioners that they plan to establish minimum in-stream-flow water rights for certain creeks and streams in the county, although they noted that the process could take up to three years to complete.
The state is looking at six streams, said Jeff Baessler, deputy section chief of the Stream and Lake Protection Section of the Colorado Water Conservation Board (CWCB).
Those six, he said, include upper East Divide Creek, Beaver Creek, the Dry Fork of Roan Creek, the Left Fork of Carr Creek and the East Fork of Parachute Creek. The streams are situated generally in the central to western portions of the county, and one, a section of East Divide Creek, wanders into Mesa County, Baessler said.
The flow of water in all six streams is to be supplemented by varying sizes of water rights, as permitted by 1973 legislation intended to “correlate the activities of mankind with some reasonable preservation of the natural environment,” and giving the CWCB the power and authority to do so.
In general, Baessler told the three county commissioners, the in-stream, minimum-flow program is set up to operate within the parameters of the existing priority-rights system, which governs the use of water in the Upper Colorado River Basin.
In order to designate a stream for minimum-in-stream augmentation, Baessler said, three conditions must be met.
First, it must be shown that there is a “natural environment” supported by the flowing stream, typically identified by the presence of a cold-water fishery, but not exclusively, and that the “natural environment” under study will be preserved by the water that is available for in-stream designation.
Proponents of minimum-flow designation must also show that doing so would cause no injury to other water rights on the same stream.
Commissioner Tom Jankovsky interrupted Baessler at that point and asked whether someone holding a prior water right is assured of seniority over the in-stream-minimum right.
Yes, Baessler said, unless that senior rights holder has sought to change a diversion or some other alteration of the senior right, which could mean the state may have the authority to claim its right has become senior.
While explaining the in-stream-minimum program, Baessler told the BOCC that “any person or entity may recommend streams or lakes to be considered for appropriation to preserve the natural environment,” adding that the CWCB staff will review all recommendations, conduct site visits to the stream in question, perform water availability analyses and hold public hearings for input on the recommendations.
Roy Smith, who works on wild and scenic designations as well as minimum-streamflow matters for the U.S. Bureau of Land Management (BLM), told the commissioners that a majority of Garfield County streams already have minimum-flow rights in place.
And two creeks now under consideration — East Fork Parachute Creek and Left Fork Carr Creek, “are basically in pristine condition, and we are interested in maintaining that condition.”
Noting that the creeks boast healthy populations of trout, insects and plant species, he said the state is working with the different “stakeholders,” including Garfield County and oil and gas operators, as it works though the designation process.
The rights being sought by the state, said Jay Skinner of the Division of Parks and Wildlife, are relatively small, ranging from a high of 7.2 cubic feet per second (cfs) in Lower East Divide Creek in the summer, to 0.15 cfs in Upper East Divide Creek in the winter. Similar, if not quite so extreme differences in flow are being sought for the other streams, he explained.
In response to a question from Commissioner John Martin, Skinner explained that even in cases where ranchers or other users have been using water without the proper water-court decrees, the state is generally willing to let that infraction slide.
“Well, I’m telling you, you’ve got some folks using ingenuity in their survival up there,” Martin continued, noting that one rancher is filling his stock ponds with water from streams in which he holds no rights.
“And they do carry guns up there, too,” Martin added with a grin, getting a laugh from around the room, including from the state agents at the table.
At the end of the presentation, Martin said he would be “playing the devil’s advocate” in questioning the state water experts about an effort by the U.S. government to supersede Colorado’s priority-rights system.
“There is a move to make sure that all water in Colorado is controlled by the federal government,” Martin said, “and that scares a lot of people.”
“We share those concerns,” replied Skinner, explaining that the state makes use of its water rights for growing grain for wildlife, establishing minimum stream flows for environmental protection, and other purposes, and does not want to see the federal government get in the way of those water rights.
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State department of transportation crews are well on their way to clearing Highway 82 to Independence Pass, which should open on schedule May 27 at noon.