In a 14-page legal review, a prominent Colorado water attorney concludes that a proposed national conservation area on the Lower Dolores River is a good way to protect local water rights against perceived federal threats.
David Robbins analyzed the various federal risks to local water rights on the Lower Dolores River including an NCA, national monument, wilderness area, wild and scenic river, and the Endangered Species Act, plus others.
"The challenge for (local counties) is not if additional federal land management actions will be proposed and occur, but when and in what form," Robbins wrote. "There is really only one effective way to deal with the potential effects that federal land management designations can have on state water rights: Local stakeholders must work with Congress to craft specific legislation unique to the river."
He said a draft bill released this summer proposing an NCA and wilderness area on the Lower Dolores River is the "appropriate approach to resolve the significant conflicts."
The proposal creates an NCA along the river corridor from McPhee Dam to Bedrock that protects ecological values and local water rights.
As part of the bill, the Dolores Canyon Wilderness Area would also be established, encompassing stunning Slickrock Canyon but excluding the river.
In exchange, the draft bill would drop the river's suitability status as a wild and scenic river, which if designated by Congress could come with a federally reserved water right.
Robbins urged compromise and warned against fighting federal mandates to protect the environment.
"In today's political climate, it is a complete waste of time to set about seeking to amend well established federal laws, such as the Wilderness Act, the Endangered Species Act, or the Wild and Scenic River Act," he writes. "These laws have strong nationwide advocacy groups that will vehemently resist any efforts to change or dilute (them)."
Robbins reported that federal land policies, including those along the Dolores River, have "implied water rights" to fulfill their mandates of ecological protection, even it they're not specifically described.
Federal protection mandates regulating the U.S. Bureau of Land Management, Fish and Wildlife, and Forest Service affect water issues in the canyon, including protecting suffering fish species. The Clean Water Act and Colorado in-stream flow rules also play roles. Further complicating matters are demands of upstream water storage and downstream fisheries.
The best defense is grass-roots solutions and compromise, Robbins said.
"It is my conclusion that the most appropriate course of action is to implement a statutory mechanism that permits special management of the federal lands and adjoining waters in and along the Dolores River and its tributaries," he wrote. "This approach has been used with success in the past and can be set up so that the federal lands are administered pursuant to a very specific set of guidelines and criteria."
Robbins added that without action, the decisions about water uses will be made by federal agencies in the manner contemplated by the existing laws.
A legislative subcommittee of the Lower Dolores River Plan Working Group proposed the draft bill as a way to gain more local control of water rights, said facilitator Marsha Porter Norton.
"It's a legislative alternative to 'wild and scenic' suitability and is based on five years of painstaking negotiations," she said.
McPhee Reservoir managers are concerned about a national monument designation, typically proclaimed in the final year of a president's term.
"A monument can be proclaimed with a stroke of the presidential pen with no local input, as compared to the extensive local consensus for successful Congressional legislation," said Mike Preston, general manager for the Dolores Water Conservancy District. "While successful NCA legislation would eliminate the risk of a monument proclamation, it will only succeed with solid consensus, and whether and how long this will take is yet to be seen."
Robbins will present his findings at a community meeting on Sept. 30 at 6 p.m. at Destination Grill, 2121 E. Main St., Cortez.
