A state water court has upheld a controversial new in-stream flow right established by the Colorado Water Conservation Board for the Dolores River.
In 2015, the state water board appropriated an in-stream flow standard of 900 cubic feet per second on the Dolores River during spring between the confluence of the San Miguel River and Gateway.
It is intended to support river health including three species of native fish: the flannelmouth sucker, bluehead sucker and roundtail chub.
The Southwestern Water Conservation District filed a legal challenge to the new minimum flow standard, arguing that the flows were too high and could not be met in drought conditions. They further claimed that Colorado Water Conservation Board improperly concluded it could not adopt a 1 percent depletion allowance on the in-stream flow to accommodate future developments as a condition.
But the Colorado water court rejected the lawsuit claims, and confirmed the newly designated in-stream flow for the Dolores in a ruling Thursday.
District Court Judge J. Steven Patrick said the water board has the authority to appropriate in-stream flows and that it followed proper procedures.
“The Court finds nothing in the record to support a finding that CWCB’s action was unreasonable,” the judge wrote in the decision. “The CWCB did not abuse its discretion in refusing to consider ... the proposed depletion allowance.”
Environmental groups applauded the decision. Durango-based San Juan Citizen’s Alliance, Western Resource Advocates and Conservation Colorado had joined the water board in defending the board’s new Dolores in-stream flows.
“We believe this decision not only protects the beautiful Dolores River, but affirms the use of in-stream flow water rights as a vital tool to leave a legacy of healthy rivers throughout Colorado,” said Jimbo Buickerood, land and forest protection manager for San Juan Citizen’s Alliance.
The court ruling secures up to 900 cubic feet per second of water during spring peak flows, as well as essential winter flows, for a 33-mile stretch of the river. Environmentalists say the flows will help prevent at-risk native fish species from becoming listed as endangered or threatened under the Endangered Species Act. The river anchors a remote desert oasis and has plentiful recreation opportunities, they said.
“Healthy rivers are important for wildlife, recreation and critical for local economies,” said Rob Harris, staff attorney for Western Resource Advocates. “This decision will benefit fishermen, boaters and wildlife lovers and will help keep water flowing in the Dolores for generations to come.”
The reach slated for the largest in-stream flow protection on the Dolores River is near the Unaweep-Tabeguache Scenic and Historic Byway between Gateway and Uravan, Colorado.
New in-stream flows are junior to existing water rights, but senior to future water right claims.
The Dolores Water Conservancy District also objected to the new Dolores in-stream flow, and urged that it should at least have a condition to allow for some future development needs. The district manages McPhee Reservoir and dam, which are upstream from the new appropriation.
During a previous hearing on the matter, DWCD attorney Barry Spear, said the proposed 1 percent depletion proposal was to “set aside an amount that the small water developer could use to keep the water in the state.”
The Southwestern Water lawsuit claimed CWCB’s action on the lower Dolores River exceeds the in-stream flow’s statutory standard of “minimum stream flows to preserve the natural environment” and that it does not protect “present uses” of the water.
But CWCB views appropriating the Dolores in-stream flows as necessary. They say the flows preserve the natural environment to a reasonable degree and can exist without material injury to water rights.
They are also seen as a way to retain state control over local waterways.
“In-stream flows are designed to protect natural hydrographs on the river, and we feel they are better than top down river management from the federal side,” said Ted Kowalski, a CWCB water resource specialist, during a 2016 water forum in Cortez.
The new in-stream flows for lower Dolores River begin below the San Miguel confluence are as follows: minimum flows of 200 cfs from March 16 to April 14; 900 cfs from April 15 to June 14; 400 cfs from June 15 to July 15; 200 cfs from July 16 to Aug. 14; and 100 cfs from Aug. 15 to March 15.
jmimiaga@the-journal.com