By Gentrye Houghton

Nearing a decade of discussions, a Wild and Scenic designation on the Crystal River is one topic that elicits an array of responses. Many are uncertain how this federal designation may affect water rights, property rights, land management, and tourism. A steering committee was formed earlier this year, and has identified six additional alternatives for protecting the river; on the first of many cold, drizzly evenings during the end of October, over 200 residents from Carbondale to Marble gathered at the Roaring Fork High School to learn about these options. 

The Crystal River is celebrated as a free-flowing, wild river that is admired by all for its wildlife habitat, ability to sustain local agriculture and residences, recreational opportunities, and of course, its scenic beauty. While there may not yet be a consensus for how the river can be protected, there is a consensus that it should be protected. 

Previous Threats: The Dam Affair

In Protecting a Valley, Saving a River, Darrell Munsell writes, “The West Divide Project was a multipurpose water resource development in Pitkin, Garfield, Mesa, and Gunnison counties for agricultural, municipal, and industrial uses.” Last year, Bill Jochems, a retired attorney, and long-time Crystal Valley resident, explained that the expressed purpose of the project was to pump water out of a Placita reservoir over Huntsman Ridge to irrigate hayfields in an area called West Divide, near West Divide Creek south of Silt, Colo. 

“Those were amazing proposals,” he said. “Redstone would have been under a couple of hundred feet of water, with the top parts of the Redstone Castle, I think, being above the water line. It was just insanity.” 

The Redstone plan, or the so-called Osgood reservoir, would have been located just north of Redstone Village and was originally proposed to be 129,000 acre-feet that would have backed water up to Placita. Another tall dam was proposed at Placita to be 62,000 acre-feet. The Colorado Water Conservation District (River District) filed the original water rights during the late 50s and was adjudicated by the water court in 1958. 

Jochems explained that in Colorado, one would have to go to water court every six years for a showing of diligence. The legal test is that you can and will build the project. “‘Can’ meant that you have the money, and ‘will’ meant that you have the intent,” he said. “You also have to show that you’ve made progress.” 

Jochems never believed the River District was trying to push the project forward and said that the progress they’d shown during court hearings was constantly shifting around as new drawings: New engineering drawings and then fancier drawings — all things that could be done from a desk. 

“The only thing that was ever done on the ground,” he said, “was the drilling of one hole up there by Placita to get a characterization of the rock to see if it could properly support the dam. Other than that, everything was on paper.” 

During the late 2000s, groups like the Crystal Valley Environmental Protection Association (CVEPA) and the Crystal River Caucus wanted to push opposition to the project, and Jochems reinstated his law license to represent them. 

According to Protecting a Valley, Saving a River, the group called the River District’s bluff and “filed a motion in water court asking the judge to rule that the planning period (50 years) for the West Divide Project had expired and that the water district had not been diligent in perfecting their water rights.” 

In August 2013, “the end of the dam affair” was celebrated in Redstone Park. The River District settled out of court and relinquished all water rights to the Crystal River Valley. Thus, the push for a Wild and Scenic designation began as what many felt was the best approach to protect the river from any potential damming projects, but continued to be met with resistance from some Marble and Gunnison County residents. 

2018 Call on the Crystal River

In 2018, due to exceptionally low river flows, a Call was put out in August and September as there was not enough water at the Sweet Jessup Canal diversion — meaning that all junior users' access to their water rights would be cut off. However, that’s not exactly what happened because there had never been a call on those particular water rights before, the junior users weren't prepared with an augmentation, or water storage plan. 

Water law in Colorado is governed by the Prior Appropriation System. This is the main system used to manage water rights throughout the western United States where water resources are sparse. In this system, a water right that is legally established is given a date and an administrative number. During periods of water shortage, this administration number is then used to determine which water rights holders get to use water and which ones don’t. 

“Senior water rights are those that have a higher priority administration number, in which the earlier the date of adjudication the more senior a water right becomes,” says Ryan Kenney, Manager for the Redstone Water and Sanitation District. Adjudication refers to the court proceeding in which a judge validates your water rights. 

“A ‘Call’ on the river occurs when a senior water user is no longer receiving their appropriated amount of water at their headgate,” Kenney said. “The harmed senior user initiates a ‘Call’ to the Water Engineer who then implements a process to restore the appropriated amount of water to the user’s headgate.” 

The Water Engineer will begin telling junior users, in order of least priority, that they must cease use of their water immediately, and will continue down the list until the appropriated amount of water is returned to the senior user’s headgate. The cease and desist remains in effect until there is enough excess water in the river to reinstate their usage. 

In 2018, there were several neighborhoods identified, as well as the Town of Marble and Carbondale, affected as well as many other junior users who could not use their irrigation ditches. “Accesses to water was not shut off for anyone affected by the 2018 Call,” said Bill Blanton, local real estate agent and resident of the Crystal View Heights subdivision, “but they wanted to see that efforts are being taken in the way of an augmentation plan." 

Today, Wendy Ryan, Project Manager for Colorado River Engineering, continues to work on a plan solution. “We are exploring several new and existing storage facilities to be used for augmentation as well as the Janeway ‘natural infrastructure’ project,” she explained. “Our target is around 50 acre-feet of total supply. For comparison, Beaver Lake is about 100 acre-feet when full.” 

She explained that you can think of the acre-foot volume in terms of flow rates. So, to store 50 acre-feet, that would be 1 cubic foot per second (cfs) for 25 days, or 2-cfs for 12.5 days, or 3-cfs for 8.4 days, and so on. 

Crystal River Wild & Scenic and Other Alternatives Committee

In 2002, The U.S. Forest Service found the Crystal River eligible for designation under the Wild and Scenic Act of 1968. This federal protection can be customized for the needs of each river and is introduced as a bill on the congressional floor; however, Congress favors bills that have widespread support and consensus amongst surrounding residents. 

As the designation struggled to meet much traction from upper Crystal River residents, a $35,000 grant was awarded to Wilderness Workshop by Pitkin County Healthy Rivers in 2021. The goal was to launch a public outreach and educational campaign for the designation. 

Just a year later, representatives from the Town of Marble, Gunnison County, Pitkin County, and the Colorado River District formed the Wild & Scenic Feasibility and announced earlier this year the selection of Wellstone Collaborative Strategies and P2 Solutions to facilitate and lead a stakeholder process. 

The Collaborative along with Co-Facilitators Wendy Lowe and Jacob Bornstein organized the initial Community Summit in April to gauge interest and form the steering committee. Over 140 people filled the fire station in Marble, and the 25-person committee was selected. As the group identified other opportunities for protection for the Crystal River, the name morphed into Crystal River Wild & Scenic and Other Alternatives Committee. 

“We’re going for the longest name ever,” joked Lowe as she opened last month’s meeting. 

There are four segments of the Crystal River deemed eligible for designation and include both the north and south forks of the river, beginning at their headwaters and then downstream to the Sweet Jessup headgate. This is approximately 39 miles, which encompasses approximately 7,500 acres of National Forest Service land and 4,500 acres of private land. 

The outstandingly remarkable values that are recognized in managing the Crystal River are scenery, historical, and recreational. 

According to the Steering Committee’s documentation, much of the Wild and Scenic discussion among current committee members centered around questioning how much local flexibility exists, while others worried about the level of durability if Congress can change the protective status. 

Criteria for Evaluations

Lowe explained the importance of understanding the eight criteria outlined by the Committee evaluating protective approaches. She said, “The questions for figuring out what the best course of action lies in that criteria, and they’ve tried to capture everything that matters.” 

Steering Committee’s Criteria for Evaluation:

• Durable and effective protection: enduring, permanent, effective protection 
• Prevention of dams and out-of-basin diversions: no jurisdiction, entity, or person could build an on-channel dam or out-of-basin diversion 
• Sustainable recreation and tourism: recreation is better managed or upgraded to protect the river corridor 
• Local agriculture & water rights: incentives are in place to keep water rights tied to land ownership
• Local control and property rights: current level of private property rights and water rights control, subject to local and state governmental regulations
• Healthy river corridor: opportunity exists to improve and enhance the resiliency of the natural hydrograph, water quality, ecosystem health, and riparian health
• Limited future development: prohibitive of future development near the river
• Implementation capacity and funding: resources, including funding, staff, and time, are dedicated and available for implementation, management, and maintenance. 

Alternative Protection Opportunities and Approaches
 

1041 Regulations
 

This is the “do nothing” option, as existing 1041 regulations allow local governments to identify, designate, and regulate areas and activities of state interest through a local permitting process. The general intention of these powers is to allow local governments to maintain their control over specific development projects even if the project has statewide impacts. In the past, these regulations have been enacted to halt, mitigate, or modify water projects. Members of the Steering Committee expressed concern that this existing option may not be fully reliable as it depends on elected officials.

National Conservation Area or Special Management Area 

National Conservation Area designations are made by the Bureau of Land Management and designations for Special Management Areas are made by the U.S. Forest Service. These designations can vary widely and are adaptable to local interests. 

Designations can be administered by the Secretary of Agriculture or designated by an act of Congress but allow for a local level of control. “While it has federal oversight, there can be more inclusion of local stakeholders in the process,” said Hattie Johnson, Southern Rockies Stewardship Director for American Whitewater, during an August educational webinar discussing all of the protection approaches and may be watched by clicking here.

She went on to explain that no two of these legislations are alike, there's new legislation every time, and gives a local stakeholder group a lot of room to com- promise and work on the specific language. However, she said, “That can take a while; all of these processes take a while.” 

“One disheartening thing is that the process for the Delores River has taken forever to put in place,” Lowe said. After two decades of discussion, the proposed bill was finally introduced to Congress this past March but remains in the proposal stage. 

Local Management and Intergovernmental Agreements 

Water rights holders or local governments could enter into a mutual agreement that requires high barriers, such as consensus, to change agreed upon river management. Management options could include actions water users would take in times of drought to keep the river whole. 

During the Steering Committee's discussions, some members thought this solution would not be very durable while others were concerned because it would only include current diverters and would not be protective enough. 

Other localized protection and restoration options 

During the Summit, Seth Mason of Lotic Hydrological presented on the subject and stated, "Projects and management options are available to supplement or provide an alternative to Wild and Scenic Designation." 

The Steering Committee’s documentation states that other localized protection and restoration options are available, such as a combination of conservation easements, recreational access projects, restoration, water conservation projects, and management work. 

Mason's presentation states that "previous planning efforts can help direct community members in their thinking about what types of actions or projects might be beneficial on different stretches of the river." 

The 2016 Crystal River Management Plan was mentioned during Committee discussions as a place to look for some of these opportunities. However, there was some discussion that these opportunities, such as conservation easements, could be tied to other actions working to protect the water itself or be paired with some of the other options. 

Colorado Department of Public Health and Environment Water Quality Protections for Outstanding Waters 

The Outstanding Waters designation can be awarded to streams with high water quality and exceptional recreational or ecological attributes, and the intent is to protect the water quality from future degradation. This program was established as part of the federal Clean Water Act and can be administered through the state’s water quality control commission. An Outstanding Waters designation does not affect current uses on streams; it only protects against activities with new or increased water quality impacts. 

Instream Flows and Recreational In-Channel Diversions 

The Crystal River currently has four instream flow (IFS) rights, two appropriated in 1975 and two appropriated in 1980. These water rights holders could initiate a call should the in-stream flows go below a certain point for anyone with a junior water right. 

Concern amongst the Steering Committee was expressed for junior water rights, but others mentioned that adding a water right for peak flows could prevent future diversions. It was noted by one participant, in particular, that because these are water rights, they are very durable and cannot be taken away once established. 

Instream flows are at their most critical levels during July and August. In discussing an augmentation plan, Wendy Ryan explained that augmentation would further protect the ISF water rights from injury by having a local replacement supply when the decreed rates are short. “Replacements will be made for those users junior to the ISF,” she said. “Having augmentation available for existing users will empower the ISF given the small amount of supply.” 

When asked how these protective measures could affect augmentation, Ryan replied that while the proposed augmentation solutions would not impact a wild and scenic designation or any of the other alternatives, the issue for augmentation would be a federal or state-reserved water right for the amount needed to support the outstandingly remarkable values, which are not currently defined. 

“That could easily be all remaining unappropriated water, which would limit the ability to develop additional water in the basin,” she said, “not only for augmentation, but any unanticipated future needs as well." 

That could impact the ability to develop augmentation supplies, "Although," Ryan continued, "we would likely file conditional water rights needed before any designation. Though, I’m uncertain how wild and scenic designations handle conditional water rights.” 

Next Steps

When we spoke to Wendy Lowe after the Community Summit, she’d just finalized inputting initial survey results and trying to flush out any clear patterns she could see. At the end of October, she wasn’t yet seeing any clear consensus as a way forward. 

“It’s my impression that even the people who favor a Wild and Scenic recognize that it won’t meet all the criteria. At this point, the solution may be a combination of approaches bringing together everything that matters to all people,” she observed. “There’s an appreciation in the steering committee that a simple answer will not meet all their needs.” 

Lowe and her co-facilitator, Jacob Bornstein, will analyze the data they receive and present the findings during the next Steering Committee meeting on November 16th. 

They’re encouraging people to do their research on the approach and fill out the surveys by November 14th. Surveys, along with additional information, can be found online by clicking here; the educational webinars and information on each steering committee meeting can also be by clicking here. 

“With so much division right now in the United States, it’s really great that so many people are willing to come together on this issue,” said Lowe. “It’s very clear that people think it’s a very special place that needs protection, but the question is how to do so.”