WATER:

BLM, Colo. propose unique flow regime for new wilderness

WHITEWATER, Colo. -- The rugged Dominguez Canyon Wilderness in southwest Colorado, bereft of roads, transmission lines or even trail markers, is a place of quiet solitude for its human visitors.

These days, however, it is difficult to find complete quiet in Dominguez as the sound of rushing water permeates the canyon's sweeping sandstone mesas and red rock formations.

Dominguez Canyon's two main creeks -- while reduced to a mere trickle most months of the year -- are flush with water fed by the melting snowpack of the Uncompahgre Plateau west of the 66,000-acre wilderness area.

Big Dominguez Creek tears its way through riparian shrubs and over polished schist rocks before tumbling nearly 40 feet into a murky plunge pool. The flow intensifies when the stream joins the Little Dominguez Creek on its way to the Gunnison River, which flows northwest to the Colorado River.

For the canyon's native rainbow trout, speckled dace and roundtail chub, the high flows provide essential functions -- the rushing water carries away sediment, providing a habitat of unusually high water quality that attracts abundant insects.

For the galleries of cottonwood trees that have taken root near the creek beds, the flooding helps establish bare, moist soil surfaces that the trees depend on to promote seed germination and growth.

"We have a super high abundance in diversity in these creek systems because it is a pristine watershed," said Roy Smith, chief water rights coordinator in Utah and Colorado for the Bureau of Land Management, which manages the Dominguez Canyon wilderness.

That biological wealth, according to BLM, is a direct response to the peak flows that occur during the spring snowmelt as well as the short-term high flow events associated with seasonal thunderstorms and rains.

Preserving a Colorado 'treasure'

At just over a year old, the Dominguez -- Colorado's newest wilderness area -- is one step closer to securing essential legal rights to both base water flows and seasonal swells that help sustain its diversity of species.

In a decision hailed by environmental groups and supported by BLM, the Colorado Water Conservation Board last week advanced an unconventional plan that would be one of the first variable water rights ever granted in the state.

The plan -- modeled after a proposal BLM pitched to the board earlier this year -- would protect the seasonally changing flows in the canyon while balancing the needs of upstream landowners who depend on the same source of water to graze cattle.

While typical in-stream water rights in Colorado assign fixed flow rates for specific periods of time, the Dominguez proposal would allocate a fixed amount of water for upstream users and send all remaining water -- regardless of volume -- to Big Dominguez and Little Dominguez creeks.

"The board's decision is great for Colorado," said Bart Miller, water program director at Boulder-based Western Resource Advocates. "Declaring an intent to appropriate water is the first, most important step in protecting streams in the Dominguez Canyon Wilderness that sustain the area's beauty, wildlife and recreational value. These streams are the lifeblood of this very special place."

Barring any significant opposition, the Water Conservation Board could finalize the proposal at its July 20 hearing, triggering a formal water rights filing before a state water court.

The proposal would be the first in the state to ensure flows for a federal wilderness area, said Steve Smith, assistant regional director for the Wilderness Society in Colorado.

"I'm delighted that we were able to team up with water developers and local governments to craft the federal legislation [creating Dominguez] in the first place," he said. "It directed the BLM to negotiate with the state over a water right for the wilderness."

If finalized, the water right would be owned by the state and would eliminate the need for the Interior Department to declare its own water right -- a politically contentious move in water-strapped Western states.

"There is some sensitivity in Colorado to having more federal water rights," said BLM's Smith. "But there was a thought that perhaps the state's [in-stream] program could be used to fulfill federal wilderness management purposes."

An unconventional path

The Dominguez Canyon Wilderness, created under the 2009 Omnibus Public Lands Management Act, is part of the 210,000-acre Dominguez-Escalante National Conservation Area spanning three southwest Colorado counties.

At a dedication ceremony last August, Interior Secretary Ken Salazar, who as a senator from Colorado worked with his brother, Rep. John Salazar (D-Colo.), to craft legislation creating the NCA, called the Dominguez Canyon area "a treasure that we can be proud to protect for future generations."

The wilderness bill itself was unique in that it directed BLM to recommend a water right that would be held by the state rather than the federal government, but that would also fulfill the Interior Department's wilderness management mandates.

To maintain the canyon's natural qualities, the Dominguez creeks would need guaranteed springtime runoffs to boost flows and flush away sand and sediment accumulating along the banks, Smith said.

But it would also need occasional late-summer high flows to provide critical water to riparian shrubs, as well as once-a-decade thunderstorm-like rains to inundate creek beds and promote cottonwood seedlings, Smith said. Such variables are difficult to write into a traditional in-stream water right because they are impossible to predict.

Instead, Smith said, "we decided the best way to maintain the natural hydrologic variability is to request that the board appropriate all the available flow" after upstream users' needs are met.

Conflicting interests

With 16 upstream parcels covering more than 2,000 acres -- some of which could be converted into irrigable pastures -- Dominguez is rare among Western wilderness areas, which are typically designated in headwaters areas with few, if any, private landowners vying for water.

By law, upstream landowners on the Uncompahgre Plateau cannot use any water appropriated to the wilderness area.

But in a January letter to the state board, BLM urged the agency to develop an estimate of future non-federal water use for private parcels within the Uncompahgre National Forest. Under BLM's proposal, all remaining water after the "development allowance" would be reserved for the wilderness.

"The estimate should be designed to allow land owners to maintain existing land uses and viable agricultural practices, and should consider relevant factors including elevation, climate, soils, water availability, and historic water use practices," said the letter signed by then-Acting State Director Anna Marie Burden.

In response, the Colorado board commissioned a study to develop such an allowance and sent letters to upstream landowners advising them of BLM's request.

While no landowners formally protested the proposal, Oscar Massey, a rancher who owns about 230 acres in the Uncompahgre, filed for additional water in December 2009 to ensure that he would hold seniority over any water allocated to the Dominguez wilderness.

"I don't like it," Massey said of the proposed in-stream flow appropriation. "There's only a certain amount of water in this country, and it's overappropriated as it is."

Massey said he fears it will be difficult to obtain water to build new stock watering tanks or irrigation projects if he wanted to expand or improve operations on the ranch. Six families ranch about 1,300 cattle on his property, he said.

"If we wanted to go in and build a reservoir, we'd be a junior [water] right," he said. "It's nothing but a taking by the federal government."

Linda Bassi, chief of the Water Board's stream and lake protection section, said the water right includes a development allowance would allow for more development on the Uncompahgre Plateau, an area of the state with little infrastructure that is accessible only a few months out of the year.

"It's rather primitive up there," she said, adding that landowners will be sent additional letters notifying them of the board's intent to file for the Dominguez in-stream flows. "A lot of the upstream landowners are from out of state."

Precedent for future?

Chris Treese, spokesman for the Colorado River Water Conservation District, a quasi-government entity that advocates on behalf of water users in the basin, said most of the plateau's landowners appreciated state and federal regulators taking their water needs into consideration. But he cautioned that the approach might not work for other areas.

"I don't think it's going to become the template for addressing other wilderness areas or federal lands," he said.

"This was the appropriate tool for this situation," he added, "but a unique tool, not the hammer or screwdriver to reach for every time you need something from the toolbox."

While the BLM letter described the Dominguez approach as a "ground-breaking" collaboration, Smith, too, said that obtaining variable in-stream flows (ISFs) for other potential wilderness areas might be tricky.

"I think we're going to have to look very carefully at the characteristics of each wilderness study area before it is designated to figure out the best approach," Smith said.

For example, the 29,000-acre Dolores River Canyon Wilderness Study Area near the Colorado-Utah border has thousands of upstream water rights, including a major dam operated by the Bureau of Reclamation, Smith said. Crafting a development allowance for upstream users would be difficult, if not possible, he said.

"I don't think we can say, 'Yeah, this works for everything,' because every situation is going to have a different set of water users and different natural environments," he said.

The Colorado board, in fact, inserted language into the Dominguez proposals clarifying that the decision "shall have no precedential effect on future ISF appropriations."

Water scarcity

While the Dominguez approach may not be a one-size-fits-all solution to wilderness water rights, better collaboration among state, federal and local agencies will be critical to protecting wild streams and lakes in the face of projected water shortages in the West, said Leslie Jones, general counsel at the Wilderness Society in Washington, D.C.

The Colorado River Basin, for one, is projected to see up to 20 percent declines in flows as a result of rising temperatures, reduced rainfall and faster spring snowmelts, according to Interior estimates.

Such forecasts spurred the agency to unveil its WaterSMART initiative in February in hopes of better coordinating water sustainability efforts among federal, state and regional planners (Land Letter, Feb. 25).

In Colorado, snowmelt and stream flow are occurring an average of two to three weeks earlier than in the late 1970s, according to a study released Monday by the U.S. Geological Survey and published in the Journal of Climate. The shifts in timing can be traced to warming springtime air temperatures and decreasing snowfall and may have an effect on Colorado water supply, according to the study.

"Results from this study indicate that even the mountains of Colorado, with their high elevations and cold snowpacks, are experiencing substantial shifts in the timing of snowmelt and snowmelt runoff, which are occurring earlier in the year," said David Clow, USGS scientist and author of the study. "If the shifts in snowmelt timing observed in this research persist, they could have important implications for reservoir operation, water rights, wildfire severity and forest health in Colorado."

In wilderness areas, water rights would serve multiple goals by protecting the intended characteristics of wilderness -- defined by Congress as areas "where the earth and community of life are untrammeled by man" -- while also guaranteeing water supplies for downstream users, Jones said.

"When water flows through a wilderness it comes out of the wilderness unsullied," Jones said. Wilderness "doesn't consume the water, but it serves a role of water regulation and filtration."

Moreover, federal agencies are evaluating the potential for more wilderness areas in lower-elevation areas that share water with upstream users. BLM's Colorado office, which typically manages lands at lower elevations than the Forest Service, has identified 54 wilderness study areas in the state covering nearly 550,000 acres.

Securing water rights for future wilderness areas would require the same kind of collaborative approach used for Dominguez, said Smith of BLM.

"We need to engage everybody to figure out an approach that everyone can nod their head and agree to," he said. "We're going to build a track record saying we can work with the Colorado Water Conservation Board to find a way to protect this. That's the precedent."

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