The phrase “implied water rights” for special designations on federal lands sent chills down the spines of local irrigators at a meeting discussing the legal ramifications on their potential below McPhee dam.
But one of the best ways to better protect local water rights is through proactive Congressional action and compromise, advised David Robbins, a prominent state water attorney.
Forty agriculture and political leaders and Robbins met Tuesday about issues on the Lower Dolores River that have made for rough water lately.
Forest Service and mostly BLM land below the dam are being considered for additional federal protection, including designating separate areas as the Dolores Canyon Wilderness Area and Dolores River National Conservation Area. The proposal in the form of a draft bill was released last month.
Feds control river
Other preservation measures are also on the horizon.
Struggling native fish in the shallows of the Lower Dolores could be listed under the Endangered Species list, which would trigger federal action. Sections of the river are poised to become a National Wild and Scenic River if Congress so desires. Or the area could be named a National Monument by President Barack Obama.
Local ag officials and water managers want to know how each of these scenarios could impact rights to water stored in McPhee Reservoir.
“A legal review can tell us what we are doing wrong, what we’re doing right, or if we should even do anything,” said Dolores County Commissioner Ernie Williams. “I believe some kind of action is needed to protect Dolores and Montezuma County water.”
Agriculture and water interests in Dolores and Montezuma County are negotiating with Robbins to conduct a legal analysis.
Robbins is a water attorney with 43 years experience at the state and federal levels. He gave an overview of federal water issues as they pertain to agricultural interests and answered questions during a three-hour preliminary meeting.
One key message is that agencies including the BLM, Forest Service, U.S. Fish and Wildlife, and the Bureau of Reclamation are mandated by Congress on how to manage lands.
Agencies have discretionary power on how to carry out Congressional direction. But limiting that power is possible through the carefully crafted laws drafted at the local level.
“We get mad at local fed officials for implementing laws we don’t agree with, but after all it is Congress who told them what the standards are they need to follow,” Robbins said. “I encourage all of you to find ways to pass a law that constrains the otherwise open discretion of federal officials to manage the federal lands and water running through them.”
Implied water rights
There has been much speculation on which special federal designation — a monument, an NCA, a Wilderness Area, a Wild and Scenic River, or an ESA listing for native fish, could force more water out of McPhee Reservoir.
According to Robbins, they all could, unless federal legislation passes that prohibits it for an area.
“Whenever the government reserves land for a purpose, there is potential for reserving sufficient water to fulfill that purpose whether or not water is mentioned in the withdrawal,” he said.
A Wild and Scenic River designation typically comes with a federally reserved water right.
A 108-mile section of the Dolores from McPhee Dam to Bedrock is considered “suitable” for Wild and Scenic. A draft NCA bill proposes to drop the suitability status as a compromise for prohibiting new dams or mining.
If one of the struggling native fish on the Dolores River is listed under the Endangered Species list, it triggers a recovery plan that could force more water downstream.
Another perplexing issue: Sections of the Dolores below a proposed NCA from the Bradfield Bridge to Bedrock are also eligible for Wild and Scenic. If they became designated, would McPhee Reservoir continue to a target for additional water?
Robbins has been successful drafting legislation on Sand Dunes National Park and the Rio Grande River that protects agricultural water rights along with native fish.
He said he’s willing to research the issues regarding the Lower Dolores River, and is expected to submit a bid for a review. A public meeting is planned once it is completed.