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Lochhead: Colorado Water Policy Development Continued from page 2 ~ Government entities -both state- and local -should take for water development, the Colorado Water Conservation Board state policy leaves large project development to those who can greater responsibility to make their processes accessible and has held a series of public hearings. The Board will continue afford it. accountable. to solicit input as its work on this paper continues.' Similar Many environmental interests argue that a state water plan One reason for the mystique is the fact that Colorado's system efforts can be undertaken at the local level, by conservation is necessary to increase the efficiency of water use in Colorado, is so decentralized. As discussed earlier, Colorado's unique and and conservancy districts. However, such a plan cannot dictate basinwide water manage- diverse issues are addressed through a seemingly complex set Private groups and individuals should also take greater reapon- ment, .since to do so would violate Colorado's basic constitu- of agencies. Those interested in water resource development sibility to become involved in water policy issues, and to hold tional framework of individual water rights ownership. issues need to be aware of the "big picture" of how water policy public officials accountable for their actions. Many groups ex- Moreover, the policy of water use efficiency is already embodied is developed and implemented in this state. peel to have information spoon-fed to "them, or for agencies to ~ in Colorado's existing framework.. For example, the Colorado Another reason. for the mystique• is that many of the policies automatically advise them when to become active over issues courts have adopted the doctrine, of "maximum utilization." and procedures of state and local entities are unwritten. One in which they should be interested or may be affected. Much References to the "greater utilization" of the waters of the state explanation for this is a lack of funding. Many agencies are so of the criticism directed at the so-called "water establishment" abound throughout the organic act of the Colorado Water Con- overburdened with the ongoing pressures ofday-to-day business is from groups or individuals who are rarely involved in or servation Board, and the Board's construction fund authority that time and staff are simply not available to document much . even attend public processes. In order for the democratic process includes (and the Board has funded) projects which. "effect of the background of how and' why decisions are made and, to function in a pluralistic society; individuals must take respon- more efficient use of Colorado's water resources. In the last more importantly, the•policies that are common threads within _sibility to become involved and make their views known. Sim- legislative session, the Department of Natural Resources sought such decisions. As a result, members of the general public ply stated, unless public interest groups inject themselves into a staff position in the Water Conservation Board which would without a background in water policy issues. are often frustrated: the process, decisions will be made and policy will be set by ~ have dealt exclusively with water management and efficiency -when they attempt to glean basic information. This leads to the the few entities with vested interests. issues.. Colorado's system for changes of water rights, ex- perception that policy is controlled by the "water buffalos." In conclusion, it appears to me that Colorado's existing water changes, loans of water rights and plans for augmentation also One potential. solution may be for agencies to produce post- policy. system has been responsive to changing attitudes and encourage cooperation and efficiency among water users in the lion and discussion papers and policy statements. For example, new challenges. Many of the water plans or policies being same basin. ~ = on a state level, the Department of Natural Resources can issue advocated are already in place and are being implemeated. The. Finally, the. current policies of this state regarding water man- position documents, which summarize ongoing policies and system can be more accessible, however. Colorado's institu- agement, use and efficiency can be improved through the exist- positions of the Department and its Divisions. These documents tional water framework will be most effective only if individuals ing system, without restructuring the entire system. The Col- can summarize past procedure and policy as they relate to sub- and public interest groups continue to become informed and orado system has shown both flexibility and leadership over stantive issues, and can serve as non-binding guidelines that involved in its processes. Only if agencies are held accountable, the years, and water resource policy will continue to evolve not only direct future policy, but hopefully enhance consistancy and are willing to be held accountable, will the public feel that . and improve. _ ~ ~ and communication within the Department, Position statements water policy is 5eing established in response to its needs. ^ The biggest area of potential improvement in the existing issued by Divisions within the Department can also serve to The preceding remarks were presented at the 1987 Wuter system appears to me to be one of access: there is a mystique recommend new legislation, or to alert the legislature of the Workshop at Western State College in Gunnison, Color-u~o: about the workings. of the Colorado water establishment. Al- existence of any problems. Such policy statements should be Mr. Lochhead is a member of the Colorado Water Conseri'ritiorr though the processes are open and public, they apparently are made after a full opportunity for public input. For example, in Board and a partner in the Glenwood Springs law firm of not easily accessible, and are therefore not closely accountable. the process of developing its paper on policies and strategies,: Leavenworth &Lochhead, P.C. Pitts: CWC Special Project ~~ Continued from page 1 Operation of these projects is considered a significant Federal CWC document did not contain all of the details included in- standing achievement by all of the interests involved. The true action. the final Recovery Implementation Program. These detail were test of the Program, however, will be in its implementation, The Service proposed that any water project causing deple- intensely negotiated among water users, the states, Federal agen- scheduled to begin in early 1988. Implementation will nat. be lions below the minimum flow levels specified by the Fish and ties, and environmental interests between August, 1985 and without difficulty. Commitments made by all parties must •be Wildlife Service would receive a jeopardy opinion under Section. June, 1986. In late 1986, the Recovery Implementation Program fulfilled. While technical details of the Program may change 7. The minimum flow levels had no scientific basis and were was released for public review, followed by another }'ear of as new information becomes available, the basic commitments simply based on a perceived deed to maintain pre-1960. ,flows .negotiations: will not change. The Federal government is obligated to protect in the Upper Colorado River Basin. The 1983 proposal had the habitat for endangered species within the context of State water potential to disrupt State water rights law and deny water project 1'RhtiCIPLF.S law States and water. users are committed to working with the sponsors their legal right to divert water under State law. The • i Federal government in es~auuscuug ~c,ctu,.,:.a.sy-uaacu utsucaui uyiiiva~n ~c5o rg„v,~.i ,hc t,,,crsrate cc,ucpa~es and chc decrees The Recovery- Irnpiementatior~ Program pravid6s oppor- r,...a.._~__~._._3..,~ .which are needed to protect endangered of the U.S. Supreme Court ratifying• the interstate compacts. tunities fo; establishing instream flows for endangered speeies,- species_habitat. Environmental organizations and water users In response to the 1983 proposal by the U.S. Fish and Wildlife .while at the same time respecting State water rights systems are committed to acting in good faith in implementing the Service, twenty-five municipalities, special districts, and Indus- and interstate compacts. The implementation and managemenf Recovery Program, and to its continued support, as long as the tries in the Colorado River Basin, Platte River Basin, and Arkan- of instream flows to support recovery is based on four fundamen- principles upon which it is based are upheld. All parties, includ- sas River Basin asked the Colorado Water Congress Board of tal principles: ing the Federal government, states, water users, and environ- Directors to sponsor the Special Project on Threatened and 1. Provision and maintenance of instream flows at certain mental organizations are committed to working diligently to Endangered Species. As mentioned above, the goal of the Spe- times, locations, and in certain quantities is necessary to " make the Program effective, cial Project is to seek an administrative solution which would protect and recover endangered fish spades and habitat The Recovery Program is not a legal contract. If, at any allow continued water development and avoid conflicts with in the Upper Colorado River Basin. time, the parties find that the commitments are too great or the Federal Endangered Species Act. 2. Water for instream flows will be provided as part of a principles are not being upheld, the Program may cease to exist. In March, 1984, the U.S. Fish and Wildlife Service, Region comprehensive Recovery Program that addresse, the Before such drastic action is taken, however, the alternatives 6, Denver, organized the Upper Colorado River Basin Federal/ Upper Basin and fish species habitat needs as a system. I must be carefully considered, In late .1983, the most likely State Coordinating Committee for the purpose of resolving the 3. Recovery and protection of rare species is to be a shared. alternative to developing a workable solution was a massive, conflicts between protection of endangered species and future responsibility of the Federal government, the states, water ~ prolonged legal conflict pitting interstate water compacts and water development in the Upper Colorado River Basin. The and power users, and environmental organizations. This State water law against Federal environmental law, with an Committee included the Regional Director of the U.S. Fish and means, among other things, that the cost of providing. uncertain outcome. This alternative, was judged unacceptable Wildlife Service, Region 6, ,Denver; Regional .Director, U. S. instream flows and other recovery activities will be shared by water interests, when compared to the possibility of finding Bureau of Reclamation, Upper Colorado Region, Salt Lake by these parties. an acceptable administrative solution to the problem. The result City; Regional Director, U.S. Bureau of Reclamation, Missouri 4. Water rights for instream flows. established under this _ _ is the Recovery Implementation Program, which takes a positive Basin Region, Denver; and representatives of the States of process will be appropriated, acquired, and administen:d approach to achieving the goals of highly divergent interests. Colorado, Utah, and Wyoming. Abroad-based technical steer- pursuant to State law and will be legally protected under The Recovery Program is a compromise. It does not represent ing committee included Federal and state water development State law Where water rights for instream flows cannot a perfect solution from the perspective of any individual interest. and wildlife management agencies, water users, and envjron- be obtained, they will be protected through contracts or However, all interests have substantial incentives for supporting mental organizations. Biology and and hydrology technical administrative agreements with holders of appropriate the Program. The broad spectrum of interests participating in subcommittees were formed to address complex scientific and water rights. In no case shall the Federal government the Colorado Water Congress Special Project believe that the technical issues. The Colorado Water Congress has participated condemn .water rights for the purpose of protecting eu- Recovery Program can work, and they are committed to making actively in the Coordinating Committee effort since its inception dangered species. it work. in March, 1984. These principles obligate the Federal government and the" , , The basic elements of the "Recovery Implementation Pro- States to work within the State water rights law and the interstate gram for Endangered Fish Species in the Upper Colorado River THE BASIC PROPOSAL compacts in providing flows. for endangered species. Basin" are presented below. The Program recognizes, as water users have long known, • Why should water development interests support a program that water is not provided for any need simply by stopping its BACKGROUND to improve the condition of endangered species? In late 1984, development. One of the incentives for the Federal agencies' ` the Colorado Water Congress Special Project faced the question and environmental organizations' support for the Program is In July, 1983, the U. S. Fish and Wildlife Service proposed of proposing a solution to the problem. It was concluded that that rights -acquired for endangered species will be protected minimum flows on the Colorado River, Green River, Yampa the only way. to really solve the problem was to recover and under State law. Water users have the assurance. that any rights River, White River, and Gunnison River to provide endangered delist the species, as called for in the Endangered Species Act. will be acquired and administered in accordance with State law, species habitat. The Service sought to achieve these flows Unless the species are recovered, Section 7 consultations on with legal recognition of other water rights. through compliance with Section 7 of the Federal Endangered watet• and hydropower projects will never end. The future costs The Recovery Implementation Program specifies procedures Species .Act, which states that Federal agencies may take no -and constraints -would always be uncertain. fihe possibility for identification of water needs for endangered species and action which might further jeopardize the continued existence would always exist for proposals to stop water development to establishment of rights under State programs. No specific in- of endangered species. `Actions" include construction, funding protect endangered species, even though the facts indicate that stream flow quantities or locations have been identified at this of projects, or issuance of 404 orright-of-way permits by Federal other activities have caused endangerment of the species. time. Flow needs will be identified as the Recovery Program agencies. Any new or existing water or hydropower project In May, 1985, a Colorado Water Congress proposal entitled progresses, and all interests will be involved in the process.. needing a 404 permit would be subjected to Section .7 consul- "Preliminary Conceptual Approach to Recovery of Endangered In Colorado, water rights for endangered species habitat will tation. Existing Federal water and hydropower projects such as Fish Species in the Upper Colorado River Basin" was released be established and administered under Colorado's instream flow Flaming Gorge and Curecanti,. Green Mountain, and Ruedi to the Coordinating Committee. In this document, the Colorado law by the Colorado Water Conservation Board, in accordance irs, are subject to Section 7 consultations at any time. Reser vo Water Congress proposed to recover and delist the species. The Continued on page 5 / ~ ~~1 Colorado Water Rights _ _ _ _ ` _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - _ _ _ _ - ~.