A draft bill by U.S. Sen. Michael Bennet that proposes to create a National Conservation Area on the Dolores River has drawn scrutiny from the managers of upstream McPhee Reservoir.
Comments submitted by the Dolores Water Conservancy District call for clarifying language, water district representation on an advisory board, and dropping references that could limit new reservoir projects upstream of the NCA boundaries.
In September, Bennet’s office released a draft bill that would create a NCA and special management area on the Dolores River Canyon below McPhee dam on Bureau of Land Management and national forest lands.
It also proposes to release eligible portions of the Dolores River and certain tributaries within the NCA from potential designation under the federal Wild and Scenic Rivers Act.
The lower Dolores River is currently listed as suitable for a potential wild and scenic river designation, which usually must be designated by Congress, and may come with a federally reserved water right.
Bennet’s “discussion draft” bill has not been introduced in Congress. A 45-day initial public comment period ended in early November.
Staff members of Bennet’s office said Monday they are reviewing comments and suggested changes to the bill submitted by counties and stakeholders.
The NCA would encompass 45,455 acres on BLM lands in Dolores and San Miguel counties. The Dolores River Special Management Area includes 10,828 acres of San Juan National Forest land on the rim of the canyon.
The proposed designations do not include a water right, and protect existing water rights. The legislation preserves existing mining and oil and gas leases, and protects grazing rights and recreation use. The area would be withdrawn from additional mining, no new large dams would be allowed, and commercial logging would be prohibited.
In its comments submitted in October, DWCD stated: “Although the bill intends to protect existing water rights and interests in water, the Dolores Water Conservancy District has reviewed the proposed legislation and believes certain refinements to the bill are necessary in order to ensure adequate protection of water users upstream of, and within, the proposed Conservation Area and to advance what the District understands were the intended results of the bill.”
The draft bill has “unwarranted upstream impact,” the district stated in its comments.
It is intended to protect existing water rights and uses, but limits future large scale water development upstream of the conservation area, including above McPhee Dam, the district said.
The district believes the draft bill applies a portion of the Wild and Scenic Rivers Technical Report, “which describes how to determine whether a project outside a designated river unreasonably diminishes the scenic, recreational, fish or wildlife values.”
The language ordinarily applies to designated wild and scenic rivers.
“As to upstream impacts this amounts to a de facto designation of a wild and scenic river. The better approach would be to limit the consideration of upstream impacts to those areas upstream of the Conservation Area, but below McPhee Dam,” the district states.
“This is consistent with the idea that the NCA is an alternative to wild and scenic study status, not an addition, and that there will be no buffer areas associated with the NCA.”
Since flows into the NCA are controlled by McPhee releases, and because DWCD and Montezuma Valley Irrigation Co. hold controlling call rights on the river, there is “little to be gained from analysis of the actions taken above the dam,” the district stated.
The water district also called for a “broader range of water and agricultural stakeholders” to be included in the advisory council that would provide input on NCA management plans.
The current draft limits agricultural water user members to the council to those “in the conservation area.”
“This excludes participation by DWCD and upstream water users from the Advisory Council, despite its longstanding role in fisheries and managed spill releases to the proposed Conservation Area,” DWCD stated.
The water district suggests “in the Conservation Area” be removed from language on the advisory council members, and that a DWCD representative be specifically identified for participation “in order to cement DWCD’s longstanding working relationship with fisheries and boating interests.”
DWCD took issue with language that a La Plata County resident could potentially be chosen to sit on the advisory council.
The district urged that council representatives should focus on those within the Dolores River watershed. Participation on the advisory council from outside the watershed should be limited to conservation interests.
DWCD notes the draft legislation’s term “native fish” fails to specify which native fish are of concern. The Dolores river has three native fish, including the roundtail chub, bluehead sucker and flannelmouth sucker.
DWCD recommends removing “native fish” generally and replacing it with roundtail chub, as they believe it warrants management attention because the lower Dolores provides the best habitat and management opportunities for that species.
In its concluding comments, DWCD stated that the changes to the draft bill should be addressed before it could offer support for the proposed NCA bill.
They are needed to “ensure the legislation serves its stated end of providing an “alternative” to Wild and Scenic designation or study status in a manner that respects the important interests of water users.”