Fate of Lower Dolores River hangs in balance
Fifty interested citizens attended a forum Wednesday to learn whether the Lower Dolores River should be designated a National Conservation Area from Bradfield Bridge to Bedrock.
The congressional legislation would give the local community more input in how the area is managed, said David Robbins, a prominent Colorado water attorney.
“An NCA in general is used to craft site specific laws governing a piece of federal property,” he said. “Doing nothing acknowledges what’s in place now, and recognizes obligations by federal land agencies to determine if the area is suitable for a higher level of protection.”
A draft NCA bill has been circulating among the community and has received mixed reviews.
Robbins completed a legal review on how various federal designations, including “implied” federal water rights, could impact local water rights on the Dolores River.
Leaving management of the river as it is today could make upstream water rights more vulnerable.
For example, it could be designated a national wild and scenic river, or the U.S. Fish and Wildlife Service could push for more water to aid struggling native fish, including the flannelmouth and bluehead suckers, and the roundtail chub.
The proposed NCA bill attempts to minimize federal influence by stripping a section of the river’s “suitability” status as a wild and scenic river below the dam.
McPhee Reservoir managers fear if it was officially designated by Congress, it would come with a federally reserved water right that theoretically could be pulled from an upstream, federally owned reservoir like McPhee.
An audience member pointed out that the Lower Dolores has two or three stretches that are designated suitable for wild and scenic downstream of the proposed NCA.
“If we strip ours, couldn’t a future downstream wild and scenic designation reach upstream for additional flows and do all the things we’re trying to avoid?”
Robbins said there could be that potential.
“Then the entire river should be part of the NCA that eliminates wild and scenic suitability,” the man suggested.
Phyllis Snyder, of the Farm Bureau, was skeptical that Congress would pass what the community presented in the bill, because “they’ll rewrite it then we’re stuck with it.”
Robbins said he’s not that “fatalistic” and believes Congress typically responds to what the community and local representatives want in a bill.
“If you end up with something you don’t want, pull the bill,” he said.
Another man wondered how an NCA provides more local control if management is handed over to the BLM anyway.
Robbins said depending on how it is written, NCA legislation gives the BLM more specific direction on land management that is catered to local concerns.
“Congress can tell (the BLM) what will happen,” he said.
“How will the NCA improve conditions for the three native fish?” asked another audience member.
Timing of flows from the dam to improve natural spawning is one way, another is to build a dam at Plateau Creek specifically to augment fish flows on the lower Dolores.
But Montezuma County has been critical of the draft bill’s language that bans dams outside the NCA boundary, which could prevent Plateau Creek reservoir as a possible solution for improving low fish flows.
“That language needs to be renegotiated because now it appears that solution could be off the table,” said John Porter, of the Southwest Water Conservation Board.
Robbins also suggested that the draft bill be more specific on who would appoint members of an NCA management advisory board. He said the draft bill needs to be more upfront on the issue of land condemnation as well.
Regarding whether the Lower Dolores could be proclaimed a national monument under President Obama, Robbins said it is highly unlikely if the community were pursuing an NCA.
“An NCA has its limits, but it is a chance to have the community and Congress step in and provide some guidance that is better than what is there now,” Robbins said. “At the end of the day, the community has to decide this through compromise, not taking sides.”