Working with the Feds

The federal role of water management in Colorado is designed to overlap and cooperate with state programs, compelling and supporting protections without dictating how they’re met

The federal nexus with Colorado water management is significant. More than half of the reservoir storage across Colorado is federally owned. More than 70% of Colorado’s source watersheds are on land owned and managed by federal entities. What happens if Colorado fails to meet its obligations under an interstate water compact? The dispute is settled by the U.S. Supreme Court. Who sets the minimum standard for Colorado water quality protections? The U.S. Environmental Protection Agency, a federal agency.

But the water held in federal reservoirs is still a state-governed resource, and much of the federally funded work in Colorado is locally proposed, planned and driven.

“How we manage water rights within our state is really up to us,” says Kelly Romero-Heaney, assistant director for water policy at the Colorado Department of Natural Resources and special water policy advisor to the governor. (Editor’s note: Romero-Heaney also serves on the Water Education Colorado Board of Trustees.) “As long as we’re meeting our obligations under [interstate] compacts, the federal government really doesn’t have a role to play in that directly.”

The equal footing doctrine, which dates to the nation’s founding, granted states control of their own natural resources, which means states oversee water allocation to water users within their boundaries, says Jennifer Gimbel, a senior water policy scholar at the Colorado Water Center. The 1862 Homestead Act, among others, solidified that states have jurisdiction over their water.

“It’s a states’ rights attitude in the West,” says Gimbel. “Individual states, in the West especially, all develop their own way to protect and administer their water rights. It’s all under their prior appropriation doctrines. And so the state is responsible, and the states, they don’t want the government telling them how to do things,” Gimbel says.

Still the federal government’s role in Colorado water is multifaceted and major: land and infrastructure manager, regulator, administrator, funder, partner, lawmaker, and representative. When considering the federal nexus with water in the state, it’s no simple water rights question.

Recently, persistent drought conditions, historically low inflows, and quickly falling reservoir levels on the Colorado River have led many to question and discuss the federal government’s role in water rights administration across state boundaries. Could the feds step in on matters that have been historically left to the state? Or what would happen if partnership programs spearheaded by the federal government, like the Upper Colorado River Endangered Fish Recovery Program, go unrenewed — could the federal role transition from one of partner to regulator?

By Chas Chamberlin

State or federal rights on the Colorado River?

In June, ongoing drought and its effects on Lake Powell and Lake Mead prompted U.S. Bureau of Reclamation Commissioner Camille Touton to ask Colorado River Basin states to develop a plan to reduce water use by 2 million to 4 million acre-feet in 2023. That would be in addition to the water cuts that some states are already taking under the Colorado River’s 2019 Drought Contingency Plan. The plan Touton called for hasn’t yet been developed, leading many to question whether cuts could be mandated if the states don’t swiftly agree to limit water use on their own.

The 2019 drought plans, which specify when the Lower Basin states — Arizona, Nevada and California — must take water use cuts based on levels in lakes Powell and Mead, were prompted by federal requests, but they were developed and agreed upon by the states and agency representatives. The plans no longer go far enough to preserve plummeting water levels, so more water savings are required, but if states can’t agree on the additional plan and the feds step in, a federal mandate would be new for the basin.

“A federal response is likely necessary to address the growing tensions between the basin states as water levels continue to drop,” reads a May 2022 University of Denver Water Law Review article by review editor Kristen Kennedy. In her article, Kennedy points to the 1982 Supreme Court ruling in Sporhase v. Nebraska, which held that interstate water resources qualify as commerce, and so are within Congress’s authority to regulate. Would that hold on the Colorado River?

All seven states and Mexico, along with the U.S. federal government, are bound together by what’s known as the “Law of the River,” a series of laws, court cases and agreements that divvy up the river’s water and set rules for how it is managed.

The levers by which Reclamation can mandate cuts to water use outside of the agreed-upon water management framework are “untested,” says Alex Funk, director of water resources and senior counsel for the Theodore Roosevelt Conservation Partnership.

Such a mandate would be likely to land in court, says Funk, at least for the Upper Basin, where the four Upper Basin states—Colorado, New Mexico, Utah and Wyoming—have their own Upper Colorado River Basin Compact that spells out how water is divided among them. While there is a federally appointed seat on the Upper Colorado River Commission, the states and federal chair work together on Upper Colorado River water management.

It’s a bit different for the Lower Basin states who rely on the U.S. Secretary of the Interior, by way of Reclamation, to carry out the role of “water master,” managing the delivery of their respective water supplies. That arrangement was settled through the 1963 Arizona v. California Supreme Court decision.

But, in the Upper Basin, the federal role has never meant control over water rights. For the Upper Basin, having a compact is “hugely advantageous,” says Amy Ostdiek, the Colorado Water Conservation Board’s deputy section chief for interstate, federal and water information, “because it gives us control of our own destiny.”

Partner, would-be regulator, on environmental protections 

The wave of laws passed in the 1960s and 1970s to protect the nation’s fish, wildlife and environment significantly modified permitting processes for water storage and management and put the federal role front and center.

The 1973 Endangered Species Act (ESA) is one such law that gives the federal government authority to protect threatened and endangered species, which can affect how water is managed and administered.

Under the ESA, if water diversions, projects or actions carried out, funded or authorized by a federal agency jeopardize a threatened or endangered species, the U.S. Fish and Wildlife Service (USFWS) can require modification of those operations. During permitting, the agency and partners involved in the project consult with the USFWS through what’s known as a “Section 7 consultation” — referring to Section 7 of the ESA — to ensure that the project won’t harm any threatened or endangered species.

But in much of Colorado, during these consults on water projects, rather than developing ways to offset the impacts of each individual water project, state representatives, tribes, conservation groups, and water users band together to work with the USFWS on endangered fish recovery programs that create a blanket offset for numerous projects. There are endangered species recovery programs on the Upper Colorado, the San Juan, and the Platte rivers, and they include measures ranging from streamflow targets, to hatchery work, to non-native fish removal.

“I can’t say enough about the endangered species recovery programs,” says Romero-Heaney, who also serves on the implementation committee for the Upper Colorado River Endangered Fish Recovery Program, which, together with the San Juan River Basin Recovery Implementation Program, provides protection for more than 1,500 water projects  in Colorado and another 1,000 projects across the Upper Colorado River Basin. Without the program and partnership with the USFWS, each of those projects individually would have to consult with the federal agency to ensure ESA compliance, taking actions — like diverting less water or installing fish screens — to offset their impact on their own.

Plus, without the programs, recovery efforts would be less coordinated with fewer ecological benefits. “We more than comply with the ESA. We set the goal to solve the problem, to recover and delist the species, so we’re doing a lot more than just Section 7, which mitigates the impact of one project,” says Tom Pitts, a consultant who represents water users in both the Upper Colorado River and San Juan recovery programs.

Next year, in 2023, the Upper Colorado program, which has been in place since 1988, and the San Juan program, in place since 1992, will be up for reauthorization by Congress. Reauthorization is a top priority for Colorado, Romero-Heaney says. “It’s a really important program for the environment but also for our water users,” she says. Should the program go away, it would mean reconsultation on all of those 2,500-plus projects across the Upper Basin with biologists weighing in on the steps necessary for ESA compliance. “If we can’t operate through a collaborative program like that, then our relationship with the USFWS really just becomes a regulatory one.”

Negotiations for next year’s reauthorization are focused on funding, which has historically come, in part, from power generation revenue on Colorado River reservoirs. Now, with less water in the reservoirs and water levels dropping, that revenue source could be vanishing. The programs are too important to too many people to allow them not to be reauthorized, Pitts says, so the question may not be whether they’ll be reauthorized, but rather how to fund them in the future.

Wild and scenic or an alternative 

This section of the Dolores River could soon be protected as part of a new Dolores River National Conservation Area, if legislation introduced in 2022 by U.S. Sen. Bennet and Rep. Boebert passes. Photo by Jeff Widen

In addition to protecting endangered fish and wildlife, the federal government plays a role in protecting certain rivers or stream stretches that are set aside for outstandingly remarkable values. The federal “wild and scenic” river designation is a Congressionally designated status tailored to preserve selected rivers with outstanding natural, cultural and recreational values in a free-flowing condition for present and future enjoyment.

“It’s still the gold standard of river protection in this country and around the world,” says Michael Fiebig, director of the Southwest River Protection Program with American Rivers. To date, more than 13,400 miles of streams across the nation are protected as wild and scenic rivers. Designation means ensuring the rivers remain free flowing and protecting the rivers’ specifically identified outstandingly remarkable values. “There’s nothing else that keeps a river free flowing like a wild and scenic designation does.”

Colorado users generally steer toward other measures to protect rivers in order to keep jurisdiction over water in state hands and not preclude the future damming, diversion or development of rivers. The state has a Wild and Scenic Rivers Fund, which supports developing alternatives to official designation under the Wild and Scenic Rivers Act. In Colorado, there is just one stream reach, totaling 76 miles, on the Cache la Poudre upstream of Fort Collins that’s officially been designated wild and scenic.

In pursuit of a river-protecting alternative, this year U.S. Sen. Michael Bennet introduced legislation to create the Dolores River National Conservation Area in southwestern Colorado, which includes language modeled after the Wild and Scenic Rivers Act to protect that river’s free-flowing character without pursuing wild and scenic status. Rep. Lauren Boebert introduced identical legislation in the House.

If passed, that protection would come after more than 14 years of work by the Lower Dolores Plan Working Group. The working group includes 40 stakeholders of all types: ranchers, conservationists, boaters, county representatives, water managers and others, who support the legislation.

Members of the Lower Dolores Plan Working Group met for more than a decade, discussing how to protect the Dolores River Canyon while meeting the many goals of diverse stakeholders. They came away with a plan to create the Dolores River National Conservation Area. Photo by Amber Clark, courtesy of Dolores River Boating Advocates

“One of the originally stated goals of that group, that we agreed to, is ‘How can we protect the values of the Dolores River Canyon while allowing the uses that have been going on there without inhibiting them?’” says Jeff Widen, who works for the Wilderness Society and serves on the working group committee that helped draft the legislation. Rather than pursue wild and scenic designation which “would have fallen on deaf ears,” according to Widen, the group looked to other tools to meet the needs of all stakeholders.

After considering a variety of legislative and management tools, the group decided that a national conservation area was its best option, says Amber Clark, who serves alongside Widen on the group’s legislative committee. That’s because a national conservation area doesn’t come with many prerequisites, such as a reserved water right. The conservation area is tailored through its designating legislation.

If approved, the Lower Dolores National Conservation Area would, among other things, protect the river’s remarkable values. It also would mean that the area can’t be designated as wild and scenic in the future; it creates an advisory council of local stakeholders who will provide input to the federal management agencies; and, of particular importance to water users, it doesn’t include any water rights changes.

“I believe local participation in the management of the area will provide better benefits for the native fish, scenic area, recreation, permitted federal land uses, private land values and water rights than a wild and scenic designation,” wrote rancher Al Heaton in a letter to Sen. Bennet in support of the proposed legislation.

If the bill doesn’t pass during this session, the group will try again, says Clark.

“We have a strong coalition on the ground with a lot of different interests supporting this and I think that’s what’s going to continue to help move this forward.” Those broad local interests will continue to work with federal managers on a uniquely Colorado conservation area, Clark says. “We’ve worked really hard to come together and we want to continue pushing it up.”

Caitlin Coleman contributed to this report.

Independent journalist Elizabeth Miller has written about environmental issues around the American West for publications including The Washington Post, Scientific American, Outside, Backpacker and The Drake.

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