Headwaters Spring 2005: Endangered Species

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Colorado Foundation for Water Education 1580 Logan St., Suite 410 • Denver, CO 80203 303-377-4433 • www.cfwe.org Headwaters is a quarterly magazine designed to provide Colorado citizens with balanced and accurate information on a variety of subjects related to water resources.

Copyright 2005 by the Colorado Foundation for Water Education. ISSN: 1546-0584 A CKNOWLEDGEMENTS The Colorado Foundation for Water Education thanks all the people and organizations that provided review, comment and assistance in the development of this issue.

M ISSION S TATEMENT

The mission of the Colorado Foundation for Water Education is to promote better understanding of water resources through education and information.

The Foundation does not take an advocacy position on any water issue.

STAFF Karla A. Brown Executive Director

LETTER FROM EDITOR ...........................................................1 IN THE NEWS ......................................................................2 CFWE HIGHLIGHTS .............................................................3 FOCUS ON…THE ENDANGERED SPECI PECIES ACT .............................4 ESA: SAFETY NET OR SHAMBLES? ...........................................6 Enlisting landowners to help conserve species, p. 13

Jeannine Tompkins Administrative Assistant OFFICERS President Diane Hoppe State Representative 1st Vice President Justice Gregory J. Hobbs, Jr. Colorado Supreme Court

SPECIES RECOVERY STARTS AT HOME ......................................13

2nd Vice President Becky Brooks Colorado Water Congress

RISING WATERS: STATES AGREE TO INCREASE PLATTE RIVER FLOWS FOR STRUGGLING SPECIES ..........................................14

Secretary Wendy Hanophy Colorado Division of Wildlife

ENDANGERED FISH RECOVERY PROGRAM & SAN JUAN RIVER BASIN RECOVERY IMPLEMENTATION PROGRAM ..........................16

Assistant Secretary Lynn Herkenhoff Southwestern Water Conservation District

LEGAL BRIEF: WATER RIGHTS FOR RECREATION .......................19

Treasurer Tom Long, Summit County Commissioner

ORDER FORM ....................................................................21

Assistant Treasurer Matt Cook Coors Brewing At Large Taylor Hawes

Focus on the ESA, p. 4

Colorado River Water Conservation District Rod Kuharich Colorado Water Conservation Board Lori Ozzello Northern Colorado Water Conservancy District Trustees Steve Acquafresca, Mesa Land Trust Rita Crumpton, Orchard Mesa Irrigation District Kathleen Curry, State Representative

Dave Schnoor, manager of Colorado’s Native Aquatic Species Restoration Facility, helps rare toads, fish and snails get a head start before being released to the wild, p. 17.

Jim Isgar, State Senator Ken Lykens, Denver Water Frank McNulty, Colorado Dept. of Natural Resources Tom Pointon, Agriculture

About the Cover: A boreal toad wakes up from hibernation at the Colorado’s Native Aquatic Species Restoration Facility near Alamosa. Above him looms the braided chains of the Platte River in Nebraska, home to a number of threatened and endangered birds and fish.

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John Porter, Colorado Water Congress John Redifer, Colorado Water Conservation Board Chris Rowe, Colorado Watershed Network Rick Sackbauer, Eagle River Water & Sanitation District Gerry Saunders, University of Northern Colorado Reagan Waskom, Colorado State University

Watermarks Jeopardy. Critical Habitat. Safe Harbors.

Since its inception in 1973, the Endangered Species Act has managed to engender, not surprisingly, its very own set of jargon.

In this issue of Headwaters we tackle a complicated conundrum—the balancing act between preservation of struggling species and accommodation of human communities. It is a balancing act which we, in our very human way, have taken on somewhat imperfectly.

Threatened and endangered species in and around Colorado run the gamut, from whooping cranes looking for stop-over sites on the Platte River, to prehistoric-looking fish spawning in the warm silty backwaters of the Colorado River. Rare plants and animals, just like humans, need water to thrive.

Entering into the murky and dynamic world of the biological sciences, we quickly run into a phalanx of questions with no clear end-point: Do we know enough? When is a species finally ‘safe’? How do we intervene—fairly, effectively?

Unfortunately, this often translates into uncertainty—uncertainty for water users wondering if they will soon owe a portion of their water for rare fish and birds—uncertainty for regulators looking to prioritize species with the greatest needs. In our panel discussion with ESA experts (p. 6), we pushed the ESA to be accountable on many levels: prevention, intervention, recovery.

Some feel that it works best at intervention, but falls down sharply in the areas of prevention and recovery.

And although the panel disagreed in spots, what their discussion did reinforce is that saving species requires on-going conversations and continual learning. We all know we can do better, we just have to figure out what ‘better’ should be. We’re just human after all.

Editor and Executive Director

Whooping cranes forage at the Monte Vista Wildlife Refuge. The rarest of the world’s 15 crane species, the bird once inhabited much of North America. In the 1940s they were near extinction but now have recovered to some 400 birds.

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New Zealand Invader May Wreak Havoc on Colorado Streams BOULDER—A tiny mollusk that has crippled stretches of streams and rivers in other western states has recently been confirmed in Colorado waters. The New Zealand mudsnail, a native of the Southern Hemisphere, was recently discovered in Boulder Creek. This raises concerns that the fast-spreading invertebrate could soon spread to other Colorado streams, potentially overwhelming aquatic habitat and harming fish populations.

Known as a “nuisance species,” this exotic invader has no natural predators in North America. Once established, the mudsnail can quickly carpet a stream

bottom, upsetting the balance of the native aquatic environment and disrupting the food web. The creature is also highly resilient, able to survive several days out of water and tolerate a wide range of temperatures. The tiny invertebrates, measuring no more than five millimeters in length, can even pass unscathed through the digestive tracts of fish. Because they can reproduce asexually, a single New Zealand mudsnail can colonize a new area.

“It’s an extremely tough little organism,” says Peter Walker, senior fish pathologist for the Colorado Division of

Wildlife. “They can cause a lot of damage. These snails are highly adaptable and reproduce in such great numbers that they can actually lock up the available nutrients in an ecosystem.”

It’s likely the snail hitched its way to Colorado aboard muddy waders or other fishing equipment. The Division of Wildlife is advising anglers to take precautions to help halt the snail’s spread by washing fishing gear and inspecting boats and watercraft, and allowing all equipment to dry thoroughly before heading into new waters.

2005 AWRA Annual Symposium

‘Smarter Growth’ Conference

April 15, Golden

April 18-20, Denver

The American Water Resources Association (Colorado Section) is pleased to announce its annual symposium April 15, 2005. Co-sponsored by the Colorado Foundation for Water Education, the symposium will focus on results from the recent state-led Statewide Water Supply Initiative (SWSI) and what these results mean for the future sustainability of Colorado’s water supply.

Finalized in December 2004, the SWSI study predicted that communities around Colorado will fall an average 20 percent short of meeting estimated 2030 water demands.

Invited speakers and panelists will discuss innovative solutions to address predicted shortfalls, legal barriers to creative solutions, what the future holds for Colorado water users and water providers, unsustainable use of Denver Basin ground water, and other related topics. Keynote speakers will include former Governor Dick Lamm and Colorado Supreme Court Justice Gregory Hobbs.

The symposium will run from 8:00 a.m. to 4:15 p.m. at the Mt. Vernon Country Club in Golden, CO. A reception will follow.

To register, go to the AWRA Web site at http://awra.org/state/ colorado/ or call (303) 806-8952. The early registration deadline is April 6, 2005. CFWE members receive a $15 registration discount. With additional questions, contact the Foundation at (303) 377-4433.

Urban conservation issues faced by Western communities will be the focus of an educational conference April 18-20, at the Hotel Denver Tech Center in south Denver.

Keynote speakers for the event, titled “21st Century Smarter Growth Conference: Stewardship Across Landscapes,” include Denver Mayor John Hickenlooper, Colorado Supreme Court Justice Gregory Hobbs, and several noted natural resource and environmental experts.

The conference will provide a forum for discussion of pertinent conservation issues faced by communities dealing with growth and development.

The conference is designed for professionals in the natural resources, conservation and agricultural fields, the real estate industry, land developers, urban planners, landscape architects, municipal leaders and employees, land managers, consultants and students.

Sessions will feature discussions on water issues, open space, creating sustainable communities, energy, transportation, land conservation, community design and more.

For program details and registration information, visit www. cacd.us or call CACD at (970)248-0070. General registration is $115. Lunches are additional.

Weld County Groundwater Users Have Dry Outlook GREELEY—Farmers and ranchers relying on groundwater augmented by water leases and plans organized by the Central Colorado Water Conservancy District may be in for a very dry summer.

At a board meeting in mid-March, Central’s Board of Directors announced that water users in its Groundwater Management Subdistrict may only receive 2

50 percent of their water this year. Well users who are allowed to pump as part of Central’s Well Augmentation Subdistrict may not get any water at all.

However, Central is close to completing several water leases/trades with local municipalities. If these do occur, then the Groundwater Management Subdistrict could get 75 percent of their normal alloca-

tion of water, and the Well Augmentation Subdistrict 40 percent.

Because of new groundwater rules and regulations made more stringent to protect senior water rights, Central has been forced to go out and find additional water resources for well-users to pump.

COLORADO FOUNDATION FOR WATER EDUCATION

(subject to change)

DAY ONE: J UNE 22 River restoration on the Lower Elk River Lunch at a local ranch, agricultural flood irrigation Steamboat Springs Whitewater Park Stagecoach Reservoir hydroelectric facility DAY TWO: J UNE 23 Globally rare riparian forest at the Nature Conservancy’s Carpenter Ranch Elkhead Reservoir expansion and endangered fish issues Rafting trip through Juniper Canyon on the Yampa River Local history of the Meeker Valley DAY THREE: J UNE 24 Oil and gas issues in the Piceance Basin: tour a drill rig Kenney Reservoir and water quality issues in the White River Visit Dinosaur National Monument Green River/Flaming Gorge Reservoir operations For a detailed itinerary see the Foundation’s Web site at www.cfwe.org

Register for the Yampa, White River Tour June 22-24, 2005 Be part of it. Experience the beautiful Yampa and White River Basins firsthand, listen to expert speakers discuss the latest issues in regional water management, and network with new colleagues. Attend the Colorado Foundation for Water Education’s second annual professional development river tour.

R EGISTRATION Tour registration costs are all-inclusive, covering tour transportation, lodging, meals, activities and background materials.

Early Registration – Before June 3 CFWE Members $495 single occupancy room $395 double occupancy room Non-Members $550 single occupancy room $450 double occupancy room

Larry Pierce/CTO (2)

Tour Sites and Topics

Late Registration – After June 3 $625 single or double occupancy

Fly fishing on the Yampa River.

For registration forms, call the CFWE offices at (303)377-4433 or download a printable form at www.cfwe.org W HO A TTENDS ?

Last year, almost 90 participants from all over Colorado and the West attended our Upper Colorado River Basin Tour. A diverse group, they included real estate agents, state legislators, engineers, utility employees and county commissioners. Tour seats are limited, so don’t wait!

Looking towards the Green River from Dinosaur National Monument.

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By Kevin Darst

FOCUS ON…

The Endangered Species Act

More than three decades ago, with the nation’s cherished bald eagle on the brink of extinction, federal legislators passed the Endangered Species Act. The 1973 act replaced legislation in 1966 and 1969 that produced a list of endangered species but gave them little protection.

The eagle, listed as endangered in March 1967, was upgraded to “threatened” status in the lower 48 states in June 1995. But despite the efforts of an act widely considered one of the most powerful and far-reaching pieces of legislation on America’s books—the eagle remains on the threatened list today.

As of mid-February 2005, there were 518 animals (including fish) and another 746 plant species listed as threatened or endangered. That’s 1,264 species, up from 962 in 1995 and 281 in 1980. Twenty-one species are currently proposed for listing.

ESA advocates hail the protection being given those species and call the act a safety net for species they say would otherwise lose out to negligence, pollution and development.

But opponents of the act bemoan its increasing caseload and often criticize the science that drives species to be listed as endangered or threatened. They say an ill-considered listing can give species unwarranted power to impact private property rights and development. In Colorado and other Western states, these concerns often focus on impediments to the building of water supply projects and full use of water rights.

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COLORADO FOUNDATION FOR WATER EDUCATION

Cynthia Hunter

WHAT THE ACT DOES The act, which has been reauthorized seven times and occasionally amended since 1973, requires federal agencies to protect listed species and preserve their critical habitats.

Any group can petition the U.S. Fish and Wildlife Service to list a plant, animal or fish. A petition kicks off USFWS review of the “best scientific and commercial data available” regarding a species’ biological status and threats to its existence. At the review’s end, USFWS makes a ruling, recommending or declining the species for placement on the threatened or endangered list, and designating areas that constitute “critical habitat.” The agency also keeps a list of “candidates” for listing, comprised of species the USFWS has enough evidence to propose for listing. There are currently 286 plant and animal candidate species.

The ESA’s stated purpose is to conserve threatEndangered razorback suckers were once widespread in the Colorado River system. ened or endangered species and provide a plan for their recovery—using all methods necessary to bring these species to the point where they no longer need the act’s protection.

While recovery plans are part of the ESA, they often take years to build. Many species on the list do not have a recovery plan.

In more than 30 years, 17 species have been removed from the threatened or endangered lists because they recovered enough to warrant delisting. Nine species were delisted after they became extinct. The USFWS dropped five species from the endangered or threatened lists after they were reclassified or found to be closely related to other plants or animals not threatened or endangered.

THE ESA IN COLORADO Colorado harbors 16 federally listed endangered species, including 10 animal species and six plant species, according to the USFWS. In addition, eight animal species and seven plant species on the federal government’s threatened list can be found in Colorado.

The Canada lynx, a federally threatened species, was reintroduced in Colorado by the Colorado Division of Wildlife in 1999.

Since that time, the state has spent more than $1 million on lynx recovery efforts. Extensive state-led studies in Colorado could help get the lynx off the list, says Colorado Gov. Bill Owens, who advocates the takeover of ESA functions by states.

Anne Ruggles

Momentum for ESA reform has grown over the last decade.

During the 108th U.S. Congress (2003-2004), more ESA-related bills were introduced than during any other session, according to the Washington D.C-based National Endangered Species Act Reform Coalition.

In February of this year, a group of four republican congressmen vowed to rewrite the act. Their primary goals were to give private landowners more incentives to protect species, increase state involvement and bolster the scientific reviews required to list species or designate critical habitat.

Environmentalists say such revisions would weaken the act, in part by making it harder to list species.

In an attempt to address struggling species before they reach threatened or endangered status the DOW created the Colorado Species Conservation Partnership in 2001. The partnership pays landowners to maintain or develop habitat for imperiled species.

It also pays landowners to leave their lands undeveloped during the life of the agreement. The program’s goals are to reduce ESA listings of plants and animals in Colorado and to help delist species already on the list. More than 30 landowners participated in the program in its first year, helping the DOW to conserve more than 25,000 acres of habitat.

The threatened Preble’s meadow jumping mouse has been one of the state’s more contested listings, pitting residential and commercial developers, cities and water providers against the USFWS. The Preble’s meadow jumping mouse will Thousands of dollars were likely soon be taken off the threatened list. spent studying the mouse’s habitat in conjunction with proposed water projects such as the Reuter-Hess Reservoir near Parker and Milton Seaman Reservoir located on the lower North Fork of the Cache la Poudre River, among other projects.

Soon however, the mouse could see an end to its reign as a threatened species. In January 2005, U.S. Secretary of the Interior Gale Norton announced that because studies have shown the Preble’s meadow jumping mouse is too closely related to the Bear meadow jumping mouse, which is not threatened or endangered, it will be removed from the threatened list. ESA critics called the decision a victory.

Of the 14 scientists who studied the mouse for the report that led to Norton’s announcement, eight sided with the recommendation and six disagreed. ESA advocates were dismayed and criticized the study’s lead biologist for keeping the study’s data secret.

“I want the science to be transparent, credible and open,” says Jacob Smith, executive director of the Center for Native Ecosystems in Denver.

Reform-minded legislators, including Colorado Senator Wayne Allard, a Loveland Republican, were elated. Allard says the act should be more proactive than punitive, offering incentives instead of punishing landowners who have endangered species or critical habitat on their property.

“Senator Allard thinks the Endangered Species Act is well intentioned but ineffective,” says Allard spokeswoman Angela de Rocha.

WHAT’S NEXT? Some question whether this year’s Congress has the political will to pursue ESA reforms, but the issue seems unlikely to go away.

Groups like the National Endangered Species Act Reform Coalition are determined to revise the act to allow greater citizen participation in listing decisions, as well as recognition of state water laws as primary to the act’s rules, among other changes.

But its advocates say the act will stand the test of changing political winds.

“It’s clear [ESA reformers] have more momentum this year, but they have the same problem,” Smith says. “The public strongly supports endangered species protection and the act.” ❑

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Experts on the Endangered Species Act Share their Views

SAFETY NET

ESA

or Shambles?

February 1, 2005 – CFWE Offices, Denver Karla Brown, Moderator | Photographs by Brian Gadbery

Russell George, Executive Director of the Department of Natural Resources and former head of the Colorado Division of Wildlife

Karla Brown: Thank you all for coming here today. Recently, some politicians and lobbying groups have become increasingly vocal in stating that the Endangered Species Act, the ESA, is broken. Somehow since the act was first created, it has failed to fulfill its mission and it needs fixing. What are some of the major reasons people cite in support of this claim?

Russell George: From our point of view, there are some flaws in the act which we believe can be improved.

It appears, for whatever reason, that the act has not been successful at engendering recovery of species.

Whether intended or not, its prog6

Dan Luecke, Environmental consultant for numerous organizations in Colorado and the West

ress has been more in the nature of managing or controlling land use rather than actually recovering species. And that’s not acceptable.

As for some of the points we think can be changed, at the outset I would say the standard in the act that drives [endangered species] listings—the ‘best available science and commercial data’ standard—is not adequate. It’s too loose, too easy to comply with. It often means no science or commercial data is okay.

And listing has such enormous impacts for people and businesses, communities, governments. This powerful federal regulatory process needs to be tightened up. And we’ll talk about how to tighten it. But certainly using commonly accept-

Dr. Barry Noon, Professor of Wildlife Ecology, Department of Fishery and Wildlife Biology, Colorado State University

Biological Opinions If threatened or endangered species are within areas affected by a proposed federal project or action, USFWS or the NMFS conduct a biological assessment to analyze the potential effects of the project. If they conclude that the project may adversely affect a listed species or their habitat, they prepare a “biological opinion.”

The biological opinion may recommend “reasonable and prudent alternatives” to the proposed major construction project or action to avoid jeopardizing or adversely modifying habitat critical to survival of the species.

COLORADO FOUNDATION FOR WATER EDUCATION

ed peer-reviewed scientific processes would be a great step forward.

Dan Luecke: Let me take a contrary view.

The Endangered Species Act is not broken because the majority of the species listed have not gone extinct.

On the other hand, not many have been recovered.

I think those who point the finger at the act are those who somehow see it as having constrained development or other actions. But look at the number of biological opinions released every year that allow things to move forward. You will see that the act has an enormous amount of flexibility

Tom Pitts, Principal with Water Consult: Engineering and Planning Consultants

while at the same time trying to carry out its mandate.

I consider the Endangered Species Act the most noble of the Federal environmental statutes. There’s nothing quite like it. We haven’t done a great job yet, but I think we’re still learning about what we might do. I think the majority of the time when independent scientists have reviewed endangered species decisions, they have supported the decisions made by federal scientists.

Margot Zallen: I would like to note that neither Dan nor Russ said the act was broken. They both talked about some of the things we need to do to improve

it and some of the problems with it.

But let me say first that any opinions I give today are my own not necessarily those of the Department of the Interior. And in my opinion the act isn’t broken.

But I think there are a lot problems involved in carrying it out.

We have a lot of lawsuits that really tie the Fish and Wildlife Service’s hands—especially regarding delisting species and designating critical habitat. And that number of lawsuits has prevented the Department of Interior from taking what they believe are priority actions because they’re tied up meeting court deadlines.

Carl Stogsdil, Lincoln County Rancher and Division of Wildlife Landowner of the Year 2005

Generally each year there are about 1,300 formal Section Seven consultations. That means that somebody has to look over the information and give an opinion: Is this action likely to jeopardize a species? That doesn’t include some 77,000 informal consultations. And out of those, there are virtually none where U.S Fish and Wildlife is not able to reach accommodation and find an alternative way of solving the problem.

Another way to show the act is working is the issue of the Preble’s jumping mouse. The original listing decision was based upon the best biological information that existed at the time the mouse was listed. Now it HEADWATERS – SPRING 2005

appears there may be contrary information. People petitioned to have it taken off the list and now a review is going on to see if it should be taken off the list. This process is working.

The number of species which have recovered and been taken off the list is always something people ask. But we have to think about how long it took for species to get to the position they’re in. Sometimes problems have been in the works for over 100 years. It takes a long time to figure out what to do and by the time you get them listed they’re very rare, or there’s very little known about the species. Trying to figure out the needs of endangered fish that live

Margot Zallen, Senior Attorney, U.S. Dept. of the Interior, Office of the Regional Solicitor

in rapids in the middle of the Colorado River is not easy. They don’t come with an instruction manual. In summary, I say it’s not broken. It’s working as well as it can. Could it work better? Yes. Could we use some changes? Yes. Barry Noon: I want to comment on the claim about inadequate science. Being a scientist who’s worked on endangered species issues for the last 18 years, I don’t agree with that assertion.

There have been a number of formal reviews of the quality of the science that contributes to decisions.

One of these was a 2002 National Science Foundation-sponsored review of the quality of the science from ran7

domly-selected recovery plans. This review involved, I think, 15 universities around the country. What we found is that deficiencies in the data were strongly correlated to the time when the recovery plans were developed. What we saw was an extremely strong trend towards an increasing empirical foundation and data credibility going into recovery plans over the last 10 years. So in my opinion, the science was vulnerable 10 years ago, but I think now the science is extremely strong.

Tom Pitts: I think if you’re going to look at the ESA and whether it is broken or not you need to consider what its goals are. And its goals are not only to identify endangered and threatened species, but, as stated in the act, to conserve those species—and that means to bring them to the point where their protection by the act is no longer required. That’s the fundamental goal.

At the end of 2004 we had about 1,260 listed species listed. The figures I’ve heard indicate about one to two percent of that number have been actually de-listed because of recovery.

Now why hasn’t it succeeded?

One thing is funding. In the 2003 Expenditures Report on the Endangered Species Act, 105 out of 1,200 species got 90 percent of the funding. 10 percent of the species got no funding at all, and the remaining 970 species got 10 percent of the funding or about $81,000 per species. So we have hundreds of species out there on the list and there’s nothing being done—nothing significant for recovery.

And also as Margot stated—hopefully—I’m not trying to paraphrase her…the law is written in such a manner that it’s driven by lawsuits.

The U.S. Fish and Wildlife Service cannot rationally respond to the needs of endangered species when their priorities are set by lawsuits. And when judges are telling them what the priorities are for listing, as far out as you can see, there is no room for additional

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listing because the courts have dictated that sequence. Yeah, I think the Endangered Species Act is broken and it needs a lot of fixing.

Carl Stogsdil: I don’t know whether the ESA is broken or not, but let me give you my perspective as a land-

the heck out of us because of the [listing of the] Preble’s meadow jumping mouse and what that caused. I think we’ve shown with studies on the prairie dogs and the mountain plover that there needs to be more scientific research particularly regarding listing of species.

Brown: It was not until 1978 that the ESA began to require consideration of economics. How do you think species listing in Colorado has affected our economy?

“ ” “I consider the Endangered Species Act the most noble of the Federal environmental statutes.

There’s nothing like it”

—Dan Luecke

owner. I furnish habitat for a couple of species that would’ve been listed if we hadn’t gotten some good scientific research to stop it. So, I don’t think the research required by the Endangered Species Act is as good as it could be.

But how do you determine what’s good enough? I don’t know that either.

But I know as a landowner it scared

Noon: Well, I can comment on a report that I pulled off of the Web just recently done by an economist/political scientist at MIT who examined the impacts of endangered species listing on state economic development for the years 1975 through 1990. He used various measures of impacts, including construction employment and overall economic performance. He found absolutely no relationship between state GDP growth and the number of species listed or the area designated as critical habitat. In fact, he found a slightly positive relationship.

There’s a book written by John Bliese who’s a political scientist at Texas Tech University, called The Greening of Conservative America. I’ve not finished reading that but the first third of that book is an examination in general of economic impacts of environmental protection. And what he finds, and it’s well documented in peer-reviewed literature, is that at the scale of the individual states, environmental protection is adding to economic growth and economic prosperity. He challenges the myth that there is an inescapable tradeoff between the environment and the economy. So, as a scientist, what I’m trying to do is to go to the data and verify what the data says on these particular questions.

George: And I applaud that as well. But the conclusion is just wrong. It seems for data in Colorado, there are two sources one can go to and get the num-

COLORADO FOUNDATION FOR WATER EDUCATION

bers. One is the Colorado Department of Transportation and the other would be whoever assembles data on housing development. The reports I’ve seen putting those numbers together tell me that listing of the Preble’s meadow jumping mouse generated costs well in excess of a $100 million—costs that would not have otherwise been incurred but for meeting the jurisdictional requirements imposed by the federal Endangered Species Act. Those numbers are available and there are others. There’s ample justification for the belief that’s at least intuitive among all of us—that imposition of federal jurisdiction over large segments of our economic engine has costs that ultimately have to be paid by the consumer.

Pitts: I think Colorado has avoided some of the most disastrous bullets fired in the name of endangered species in terms of economic consequences and it’s done so by taking a positive approach to trying to solve the problem. And Russ is right, those costs are not accounted for.

The Upper Colorado River Recovery Program through last September spent about $138 million and I expect we have about $100 million more to go.

It’s true it’s a large-scale program. It covers 800 miles of rivers and many complex situations. But we as a state, and as water users and federal agencies, have bought into that solution because it is better than any of the alternatives. And the alternatives are legal chaos, and regulatory and economic uncertainty—and that’s a fact.

If we didn’t have that [recovery] program, we would have pitted our interstate compacts against the Endangered Species Act. And the economic consequences of uncertainty—just whether or not one could develop the state’s compact obligations—would have been enormous in terms of people going to the bank to get loans to finance next year’s crop or to finance a water project.

Luecke: It’s true the states have put in contributions of money and time as well, but you really have to take a look at these as federal transfer payments and the multiplier associated with them. As a society we have committed ourselves to saving these species. And as a society we have committed some funding, per-

“ ” “…105 out of 1,200 species got 90 percent of the funding. So we have hundreds of species out there on the list and there’s nothing being done—nothing significant for recovery.”

—Tom Pitts

haps not an adequate amount as Tom pointed out, but it’s there. So to look at what happens on a state-by-state basis can sometimes be rather misleading.

Zallen: I think we have to recognize as you said, that economics only really became a part of the Endangered Species Act in 1978. The act says that in considering

HEADWATERS – SPRING 2005

critical habitat you’re supposed to take economics into account. However, U.S. Fish and Wildlife is prohibited from taking it into account for listings. Congress said that the will of the people of the United States is that we want to recover these species. We want to prevent them from becoming extinct. And cost is not a consideration when we list species.

The other place where economics comes in is where Fish and Wildlife is working to develop alternative actions.

These are supposed to be economically feasible. The Fish and Wildlife Service in my estimation has spent hours, years, trying to work out accommodations with people who have a problem in the Endangered Species Act. So I think we have to look at this in context—we can’t say on one hand recovering species is what we want to do, and then on the other hand say it costs too much. I think we have to think about how it affects the individual. And there are times people have had to reconfigure their projects, they may have had to move their highway, change something—but they have not been prevented from going forward.

These alternative actions Fish and Wildlife recommends are to be ‘economically feasible.’ But let’s remember Congress has said, ‘We want to protect these species.’

Noon: I also want to comment as a wildlife ecologist, it seems very narrow to look at these issues one species at a time. If you protect habitat for a listed species, the other species using that habitat are also benefiting. Let me give you an example. I’ve reviewed the plan for management of the Gunnison sage grouse. Now a number of people Critical Habitat For endangered and threatened species, this term means specific areas within the larger geographic area occupied by a species, determined to be essential to the persistence of the species in the long-term (more than 50 years) or requiring special management considerations or protection.

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were very happy that the Gunnison sage grouse was not listed. What they fail to recognize is that sage brush habitat is critical winter range for deer and elk and antelope—species with significant importance for the hunting community where there’s tremendous economic gain to Colorado. So if you focus narrowly on the grouse and fail to recognize all the other species that are going to benefit from its conservation, that’s a very narrow view and in my opinion a very inappropriate way to discuss the issue.

Pitts: But you know a full discussion of benefits does take place, and it takes place in the United States Congress and the state legislatures when they’re setting up budgets. And I don’t know where they would end up if we didn’t have an Endangered Species Act—but just had endangered species. And then we asked them, how much money would they want to allocate for endangered species? Well, I don’t think they’d allocate very much.

Even now, how much money does Congress give to endangered species?

Almost nothing.

Noon: Right.

Pitts: So that ‘full benefit’ discussion takes place every year in Congress. It takes place every year or two in state legislatures, and it doesn’t get us anywhere.

Expenditures for endangered species are driven by a desire to avoid costs created by the Endangered Species Act through uncertainty, through taking of property. That’s what drives those expenditures and it’s not a consideration of, ‘Well this will be nice for all these other species.’ Or, ‘This will be nice for landowners.’ It’s driven by the regulatory clout of the Endangered Species Act. Brown: Some of the dollar amounts spent on recovery programs are substantial.

How much do you think the citizens of Colorado—and since we receive federal funding, citizens of the United States as well—are willing to pay to conserve species?

Pitts: Voluntarily or required? I think that’s an issue. I think voluntarily it probably would not be in our priority. That’s 10

just my opinion. In polls, people want endangered species protected. But that doesn’t get to the point of how much they’re willing to spend on a voluntary basis. If what we see coming out of Congress on a species-by-species basis is any indication, I would say they’re not willing to spend much compared to the magnitude of the problem.

Zallen: Well, I think we have to put the amount we’re paying in light of other things we spend our money on. When we look at the amount of pizza that’s

“ ” “if the people of Colorado are willing to put their money into incentive programs, I don’t know why it wouldn’t work on the river to reimburse farmers for not using their water. That could be beneficial for the species and for the river too.“

—Carl Stogsdil

delivered in the United States each year, we spend $32 billion. That’s with a B! The amount of money that’s been spent in 14 years on the recovery program is about equal to two years worth of pizza in Washington D.C. So you have to look and see where our values are.

I know that you asked about

Colorado and I don’t know of any specific studies done in Colorado—others might. But I’m very well aware of what’s going on in my own county—Jefferson County—which is not considered a liberal bastion. People in Jefferson County and other counties in the state have in the last 10 years overwhelming voted to tax themselves to support open space and ecosystem protection. The last election we had in Jefferson County, that was supported by over 71 percent of the voters.

George: I would agree. I think there is a generally positive attitude towards protection of most species—threatened, endangered or otherwise. And there’s just something intuitive and natural about that. My figures tell me that some 68 percent of people polled nationwide have a positive attitude towards work under the Endangered Species Act and recognize that some federal and state resources accumulated from taxes and fees should be invested.

Colorado has a similar attitude. A number of years ago the legislature stepped up and said it’s a matter of state policy that we will invest state public monies to set up a Species Conservation Partnership. Maybe not in the first year but certainly in that first wave, we put in about $11 million, a fairly significant sum for a small state like Colorado.

For the last decade or so we’ve also had the Great Outdoors Colorado Trust Fund, funded by lottery purchases, to provide a quarter of that trust fund with monies made available to the Colorado Division of Wildlife.

And the choice of the Division of Wildlife has been increasingly to move those monies into species conservation—primarily to match increasing federal funding.

Right now, we’re trying to complete an agreement between Nebraska, Wyoming and Colorado about how to adjust the flows of the South Platte River in order to try to solve endangered species issues there—whooping cranes, pallid sturgeons, plovers and terns.

And although there isn’t complete agreement on what it will take or what effect altering river flows will have on the species, I am satisfied that [to fund the program] water users along a good portion of the South Platte, at least

COLORADO FOUNDATION FOR WATER EDUCATION

from Denver downstream, are ready to step up and pay a user fee. And it won’t be a lot. The number I have is around 50 cents a month. I don’t know whether that’s based upon a certain quantity of use. But the number I was given is that in pretty short order we can raise $10 million just this way.

Stogsdil: Coming again from a landowner’s perspective: since as you said, we [private landowners] have 85 percent of the listed species on our property—we’re willing to do the match.

I’ve worked on incentive programs through the Division of Wildlife. And if the people of Colorado are willing to put their money into incentive programs, I don’t know why it wouldn’t work on the river to reimburse farmers for not using their water. That could be beneficial for the species and for the river too.

Brown: It is often cited that about 85 percent of endangered species have significant habitat on private land.

How does the government develop regulations such that private landowners are encouraged and willing to protect species?

Stogsdil: Let me answer that first of all.

I don’t think they ought to develop regulations. I think it ought to [work through] incentive programs and monies ought to be available to pay people for habitat. And if they’ll do that, it will look real good for people to provide acreage for wildlife or whatever.

And like I said, I think it can be adapted for rivers too—if there’s money around. Most of the [landbased incentives] come through the Farm Bill now. So, I think it can work for water rights too. But when you go to putting regulations on private landowners you’re going to get a lot of trouble.

Noon: Let me just agree with Carl. I think what we need to change is to have more positive incentives for private landowners to conserve. Fish and Wildlife made a positive step by adopting two ideas: ‘No Surprises’ and ‘Safe Harbors.’ Most of us working on T&E species recognized that we couldn’t to be successful if we didn’t have positive incentives for private

landowners to participate. That was sort of a first step.

I have subsequently worked with a number of private landowners who are taking full advantage of the Safe Harbors and No Surprises under Section 10 and I think it’s working.

But I think we could go even further—have some sort of direct financial transfer.

George: I agree totally with both of you… and we need to keep our flow of resources going into incentives. We’ve

“ ” “Congress said that the will of the people of the United States is that we want to

recover these species.

We want to prevent them from becoming

extinct. And cost is not a consideration when we list species.”

—Margot Zallen

been doing it with the Gunnison sage grouse—primarily in Gunnison County with wonderful success—and if we can just keep that up we can recover the Gunnison sage grouse in Colorado, which is really what we’re all about. I mean none of us disagree with that.

We’re moving quite a lot of resources

HEADWATERS – SPRING 2005

into the mountain plover program that we’re incentivizing on the eastern plains, and so far so good. And of course the more success we have doing this, the more comfortable the Fish and Wildlife Service becomes, and the more comfortable organizations wanting more strict enforcement of the Endangered Species Act will be. And the more comfortable they are, the less reason they have to sue or file petitions.

Brown: Given that you have all worked on endangered species-related issues for many years, if the act were to be amended, what would you suggest?

For example what other approaches to species recovery might you suggest?

George: I’ll start. I have a couple specifics. I would like to see us continue down the path that I’m seeing increasingly now with the Fish and Wildlife Service administratively delegating more management to the states—letting state agencies and their local private partners have more management authority on T&E species.

This is going to light up Dr. Noon again but I really do think we need to No Surprises Policy Policy developed in 1994 by Secretary of Interior Bruce Babbitt to assure landowners that once federal agencies have approved their Habitat Conservation Plans, the government will not later require that the landowner pay more or provide additional land, for example, even if the needs of species change over time.

Safe Harbors Agreements Developed in 1995, Safe Harbors Agreements are voluntary contractual arrangements between landowners and the federal government. They involve determining baseline environmental conditions and agreedupon habitat management activities. A landowner is then issued a permit allowing alterations to the property that could be defined as a “take” (to kill, harm, harass, trap, or wound) of an endangered species.

The agreed-upon management activities are designed to provide benefits to the endangered species despite any potential “take” that may occur.

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change the standard for the role that science plays. And I mean particularly at the front end. Just being able to petition for listing based upon the current standard, which can mean we just don’t know enough, and therefore we invoke this federal legislation—this just can’t be acceptable. There needs to be some higher standards at the front end.

But what are we trying to do here? It isn’t just altering land use conduct by humans. It’s to figure out what’s causing the threat. We need to know what has to change in order to recover species. We also need to be more precise about recovery standards and goals so that we know how to solve our problem. What do I need to do, to get where I need to go?

And I appreciate Margot’s point earlier that it’s taken a long time for these species to get into this predicament and humans, certainly when it affects our business and our profits and our lives, are pretty impatient.

But earlier rather than later we need to be establishing recovery goals and I think this needs to be built into the updating and modernization of the Endangered Species Act. Noon: I still don’t understand why you think the science is deficient when we’ve now had a 1995 National Academy of Sciences review. We had a 1996 and 2002 Ecological Society of America and a National Science Foundation-sponsored evaluation of the quality of the science. We had a 2003 General Accounting office evaluation of the quality of the science.

And we have this 2005 report that was released last week about the quality of the science in the Platte River.

All of them found that the quality of the science was meeting the highest standards. Now I don’t understand how you can assert that somehow the science is deficient. I can speak directly about species that I’ve worked on recently in the recovery process and in the proposal for listing process. And I know of the quality of the science. I know of the extensive peer review and I think that is the standard for the Fish and Wildlife Service.

Zallen: Well, I don’t know that Russ said 12

the science is deficient. I think he is saying the standard in the law says they have to make a decision based on what’s available and sometimes that really isn’t enough to tell you whether you should list or de-list. Procedurally,

“ ” “Earlier rather than later we need to be establishing recovery goals and I think this needs to be built into the updating and modernization of the Endangered Species Act.”

—Russell George

we may need more time or flexibility to gather sufficient information to decide whether to list or delist a species.

Is that correct? Is that what you were saying?

George: Yes. Thank you.

Zallen: But I’d like to answer the question about what I personally think. There are a number of things I would do—if I were queen or king for a day.

I would deal with the critical habitat problem. Of course, right now critical habitat is supposed to be deter-

mined at the time of listing. People often say we don’t know enough at that time to say what critical habitat should be.

There are a number of ways to deal with this issue and I don’t know which one is the best. Suggestions from the people I talk to go from getting rid of critical habitat completely, to saying that we shouldn’t determine what critical habitat is until we do a recovery plan.

And then thirdly, I would try to just get some good heads together and think about what we should put in the act to try to prevent species from getting on the list in the first place. We need to take early actions focusing not just the species but the ecosystems.

The Endangered Species Act is not an ecosystem protection act. And we need to look at ecosystem protection in order to prevent species from getting listed in the first place.

We need to have more landowner incentives, and work more with landowners. We need to learn more about the symbiotic relationships that rare species have with habitat. And we need to have more grants and work with the states on rare species. We need to be cooperating with local groups such as those in California working to protect habitat used by condors, or working with open space in Jefferson County. Just right here outside this window I’m looking at lands that have been preserved by Jefferson County open space funds that support bald eagles, peregrine falcons, and other listed species.

Noon: Since people are talking about changes they’d make I’d like to talk about one feature of the act I would never change. The Endangered Species Act is unique in my opinion within the realm of federal environmental law, in that it is designed so that all of the scientific uncertainty does not fall on the species.

And I think that this is the noblest feature of a noble act—that we recognize that we’re never going to have all of the answers but even with that uncertainty we still are bound and determined and committed to protect any species. Whatever is done to amend the act I hope that feature remains in place. ❑

COLORADO FOUNDATION FOR WATER EDUCATION

Species Recovery Starts at Home

State-landowner partnerships strive to keep species from threatened or endangered status

A

t an Endangered Species Act hearing last summer in Greeley, Jim Sims didn’t mince words explaining how some private landowners handle endangered species on their property.

“Shoot, shovel and shut up,” said Sims, executive director of Partnership for the West, an advocate for business, oil and gas and timber industries, according to the Longmont Daily Times-Call. “Most people hope they don’t find these birds, because they won’t be there the next day.”

There are 31 plants and animals on the endangered and threatened species list in Colorado, including the Canada lynx, gray wolf, black-footed ferret and Preble’s meadow jumping mouse. Discovery of endangered or threatened species—or designation of critical habitat for those species—can force changes in farming practices or necessitate lengthy reviews for water projects or other construction ventures.

Sims and other critics of the Endangered Species Act say the law doesn’t work because few of the species who make the endangered or threatened list ever recover enough to be taken off the list. In addition, although it is estimated that some 85 percent of endangered species have significant habitat on private land, the act doesn’t give private landowners sufficient incentives to conserve species on their property, critics say.

Advocates of the ESA, however, say it’s a vital safety net that prevents extinction of struggling species.

A mix of all three of those philosophies spurred development of a Colorado Division of Wildlife program to start paying landowners to preserve existing habitat or create new habitat for imperiled species. The Colorado Species Conservation Partnership, created in 2001, is designed to stave off more listings of plants and animals in Colorado, keep other species from declining, and recover species already on the threatened and endangered list, or labeled as state species of special concern.

“When a species becomes listed, it’s that much more difficult to manage,” says Ken Morgan, a private lands habitat specialist with the DOW. The DOW runs the Colorado Species Conservation Partnership in partnership with the Great Outdoors Colorado

trust fund, private landowners, non-governmental organizations and the U.S. Department of the Interior. More than 30 landowners applied to the CSCP during 2003-2004, leading to the protection of 25,000 acres in six projects. Six more projects this year will encompass 8,300 acres. Any landowner, land trust or conservation organization can apply to the program.

DOW biologists evaluate the applications.

Landowner payments are based on an appraisal which takes into account development pressure on the land. Landowners may receive as little as a few dollars per acre or as much as $1,000 per acre, Morgan says. The most important part of the program is its “ability to manage for species of concern while keeping people on the land,” he explains.

Preserving habitat for the Gunnison sage grouse and greater sage grouse, two candidates for listing as threatened or endangered, has been a priority of the program, Morgan says.

Historically, Gunnison sage grouse were found throughout southwest Colorado and southeast Utah. Today, the species exists in eight isolated populations with a total estimated breeding population of less than 4,000 individuals with the largest population (~2,500) in the Gunnison River Basin (Gunnison and Saguache counties).

The more common greater sage grouse can be found in 11 Western states. In Colorado, the grouse populate northern Eagle/southern Routt counties, and the Middle and North Park areas. Recent studies by the DOW have found that the number of active greater sage grouse leks, or mating grounds, and numbers of males per lek are maintaining at or above historical averages in these locations.

Perhaps due in part to the success of local studies and conservation efforts, in December 2004 the U.S. Fish and Wildlife said it would not propose the greater sage grouse for listing at this time. All six CSCP projects for 2005-2006, which will cost about $6.5 million once they’re approved by a GOCO subcommittee, deal with grouse habitat.

“It’s all sage grouse this round,” Morgan says. “They’re of primary concern due to changes in the landscape. Where the Gunnison sage grouse lives is under a great deal of pressure from development.” ❑

By Kevin Darst | Photograph by Jim Richardson

HEADWATERS – SPRING 2005

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Rising Waters

States Agree to Increase Platte River Flows for Struggling Fish and Birds

By Dan MacArthur | Photographs by Jim Richardson

A

fter more than a decade of frustrating and yet persistent negotiation, agreement is growing nearer on a plan to recover four threatened or endangered species along Nebraska’s Platte River.

The portion of the central Platte extending from Lexington to Chapman has been designated as critical habitat for survival of the endangered whooping crane and interior least tern in addition to the threatened piping plover. The lower Platte River from its confluence with the Elkhorn River to the Missouri is designated as critical habitat for the endangered pallid sturgeon.

The need for a cooperative, comprehensive approach to developing a federally-mandated recovery plan became apparent as fractious conflicts quickly arose.

A U.S. Fish and Wildlife Service biological opinion wanted as much as 417,000 acre-feet more water in the Platte River each year for threatened and endangered species, specifically to offset the effects of new and existing water diversion projects. But water users resisted these federal demands—

demands based on what they considered to be shaky science that failed to address recovery of the species as a whole.

By 1994, officials agreed that a basinwide approach was needed to limit further conflict and meet the needs of both imperiled species and water users. Subsequent negotiations in 1997 resulted in a “Three States Cooperative Agreement” to address Endangered Species Act issues affecting water development in the Platte River Basin.

A non-governmental group called the Platte River Endangered Species Partnership was charged with designing the Platte River Recovery Implementation Program. A governance committee was formed to develop details of a plan for the first increment of the recovery program. This 10-member committee includes representatives from Colorado, Wyoming, Nebraska, U.S. Fish and Wildlife Service, U.S. Bureau of Reclamation, North and South Platte water users, downstream water users, environmental and avian interests.

The Platte River recovery program is aimed at meeting Endangered Species Act mandates by ensuring that future water

diversions from the river won’t threaten the four species’ existence. It also strives to assure that additional species won’t be listed, and that current and future water users won’t face additional demands for more water or habitat—at least for the 13year term of this agreement.

At this time, the partnership’s proposal is to incrementally increase flows in the Central Platte River by 130,000 to 150,000 acre-feet annually. This is a substantial amount, given that the current flow of the South Platte River at the Colorado state line averages some 403,000 acre-feet per year, according to data collected by the Colorado State Engineer (2003). The partnership also plans to eventually protect, restore and maintain 10,000 acres of habitat in central Nebraska.

Dan Luecke, a Boulder-based consultant to the National Wildlife Federation, represents the environmental community on the governance committee. He says he expects the final Environmental Impact Statement due out later this year to largely endorse the partnership’s proposal, which he regards as “an important first step.”

Sandhill cranes, who are not endangered, take flight over the braided river channels of the Platte River in Nebraska. The Platte River Valley becomes a six-week pit stop from late February to early April for as many as a half million sandhill cranes journeying north to their Arctic breeding grounds.

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COLORADO FOUNDATION FOR WATER EDUCATION

However, he believes more water and habitat may be needed in the future.

In the first phase of the agreement, each of the three states would cooperate to supply some 80,000 acre-feet of water. In Wyoming, this would involve restoring the full capacity of Pathfinder Reservoir. In Nebraska, 100,000 acrefeet in Lake McConaughy would be earmarked as an “environmental account” to store water dedicated to recovery of the species. Colorado has agreed to implement its Tamarack Phase One Plan. This project takes water from the river during times when junior water rights are available—primarily during the winter. That water is temporarily stored in shallow underground aquifers where it gradually and predictably makes its way back to the river when water is scarce—primarily in the summer. This initial step would provide 10,000 acre-feet annually to the recovery program.

The remaining 50,000 acre-feet per year needed for the first phase would come from Water Action Plans developed by each state. These plans include measures such as conservation (e.g., canal

lining) and additional managed groundwater recharge programs.

Luecke is optimistic the water and land provided in this first phase of the agreement will tangibly benefit species by producing wider, shallower river channels, increased wetlands and bigger buffer areas. That belief, however, has yet to be confirmed by the U.S. Fish and Wildlife Service, which is scheduled to release its final biological opinion in October 2005.

Allen Berryman, who heads Northern Colorado Water Conservancy District’s Engineering Services Branch and represents South Platte River water users on the committee, is convinced the partnership’s efforts will come together this year.

The biggest catch is the cost of the recovery program, which has risen from an original estimate of $75 million to more than $175 million today.

This would be split evenly between the states and the federal government, with Colorado and Nebraska each responsible for 40 percent of the states’ cost and Wyoming paying 20 percent, over a period of 30 years.

However, there is concern that the

HEADWATERS – SPRING 2005

recovery program could still be derailed by legislators in the three states chafing at its high price tag. In Colorado’s case, many feel that the state is unlikely to be able to pony up its share, given its current budget distress. That means the costs would have to be borne by every Coloradan who uses Platte River water, especially municipal customers served by major providers like the Northern water district and Denver Water.

Berryman said he is reluctant to predict precise costs because it is still unclear how many South Platte water users will participate in the recovery program and what share of the cost they will bear. He did, however, note that there are some three million water users in the South Platte Basin who in some way could share Colorado’s total estimated cost of $2 to $3 million a year.

“They’re going to have to convince all the water users in the South Platte that it’s a good deal,” says Luecke. Berryman, too, is convinced it’s a price water users must be prepared to pay to balance the need for species’ habitat, if they want to maintain control of their water. ❑

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Upper Colorado River Endangered Fish Recovery Program

&

San Juan River Basin Recovery Implementation Program

By Kevin Darst | Photographs by Jim Richardson

I

n her 15 years with the Upper Colorado River Endangered Fish Recovery Program, Angela Kantola certainly had chances to try something else. But the opportunity to help save struggling fish, as well as work on one of the federal government’s most complex and challenging recovery programs, kept her home.

“It’s just so interesting, I didn’t want to leave it,” says Kantola, assistant director of the program, which was started nearly 16 years ago to save four endangered fish living in the Colorado River.

Fish recovery is a difficult proposition on many levels: scientific, regulatory, economic, political. In addition to juggling the demands of multiple government agencies and interest groups concerned about the fishes’ survival, the Colorado is one of the most heavily used and politicized rivers in the West. Increasing pressure—both from downstream states such as California, and from the growing Front Range region of Colorado—put a premium on water left in the river to support fish populations. In addition, drought and an exploding non-native fish population have made the last several years challenging, Kantola says.

A researcher sets a fish trap on the lower Yampa River near Echo Park. Scientists are studying many factors from spawning patterns to increasing numbers of non-native fish that can outcompete endangered fish for food and habitat.

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COLORADO FOUNDATION FOR WATER EDUCATION

H ISTORY The Upper Colorado River Endangered Fish Recovery Program was created in 1988 by Colorado, Utah, Wyoming, the U.S. Secretary of the Interior and the Western Area Power Administration, to save four endangered fish while continuing to develop water supplies from the Colorado River. This endangered species recovery program, which in 2001 was extended through September 2013, focuses on habitat development and management of the humpback chub, bonytail chub, Colorado pikeminnow and razorback sucker.

Federal dam and reservoir managers, for example, have agreed to release water at times selected to benefit the fish. In addition, the program has also funded construction of fish passages around dams, and fish screens to prevent endangered fish from getting trapped in irrigation canals.

Fish stocking, research and monitoring are also part of the recovery program, which has been called an “ongoing success story” by state and federal officials.

A similar initiative, the San Juan Basin Recovery Implementation Program, was created in 1992 to protect and recover the pikeminnow and razorback sucker in the San Juan River Basin in the face of continued water development such as the Animas-La Plata Project near Durango and others.

Federal and state agencies, along with water and power users, have contributed

more than $173 million to both programs since 1999. Currently, the San Juan and Colorado River recovery programs have a $100 million capital construction budget to use by the end of 2008. Power revenues, upper basin states (Colorado, Utah, Wyoming and New Mexico) and water and power users would fund $54 million of that, while the U.S. Congress would pick up the remaining $46 million.

Of the $17 million to be paid by upper basin states, Colorado will pay $9.2 million.

A majority of those funds, some $8 million, would go to the Colorado River program.

A CCOMPLISHMENTS AND S TRUGGLES The U.S. Fish and Wildlife Service in 2002 approved a set of milestones endangered fish populations have to meet for their status to be improved, or for the fish to be removed from the threatened and endangered list. These standards vary for each species, but must be maintained for five years to be enable the species to be downlisted from endangered to threatened. The humpback chub, bonytail chub and razorback sucker must meet those goals for three more years to be delisted, while the pikeminnow would have to sustain those measures for seven more years to be delisted. According to the federal government, all four species are still classified as endangered. Still, the recovery programs tout a list of other successes.

The bonytail chub is the rarest of the endangered fishes in the Colorado River Basin. It is commonly eight to 14 inches long. Adults have a distinctive hump behind their heads.

Since the recovery programs were started, the humpback chub and Colorado pikeminnow have been upgraded from “state-endangered” to “state-threatened” on Colorado’s own list of threatened and endangered species. Although in 2002 they were thought to be close to recovery, drought and a surge in non-native species populations has since set these fish back at least five or 10 years from that goal.

Alamosa Hatchery Specializes in Rare Species

T

Cynthia Hunter

his summer marks the fifth $6 million facility, the only one of its kind year Colorado’s Native Aquatic in the country. While traditional hatcheries Species Restoration Facility require raceways (large circulating pools) has been breeding and releasand cool water to raise trout and other game ing threatened and endangered fish into species, this operation focuses on creating the state’s rivers and streams. Opened in the warm and often silty water conditions 2000, this facility run by the Colorado common to many Colorado rivers.

Division of Wildlife aims to recover native Manager Dave Schnoor notes that so fish and other aquatic species, including far his staff has successfully bred all but toads, snails and mollusks, to self-sustainone of the species under their charge.

Colorado’s boreal toads are a federal ing populations in the wild.

The plains minnow, a short-lived fish that candidate species and are listed as The facility just outside Alamosa raises 10 requires muddy flood waters to spawn, endangered by the state of Colorado. fish species and one amphibian—the boreal has been particularly difficult. “The chaltoad—listed by the state as threatened or endangered. The six-per- lenge is to figure out the trigger mechanism that gets them to son staff also works closely with the U.S. Fish and Wildlife Service’s lay eggs, says Schnoor.”

Upper Colorado River Endangered Fish Recovery Program to While continuing ecosystem stresses ensure that Schnoor raise two federally-listed species—the Colorado pikeminnow and won’t work himself out of a job anytime soon, he says the bonytail chub. facility’s success raising endangered fish also helps ensure that The Division of Wildlife, Colorado Water Conservation Board Coloradans won’t be asked to drastically change how they use and Great Outdoors Colorado (GOCO) funded construction of the and consume water. ❑ HEADWATERS – SPRING 2005

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✔ Two hatcheries in Colorado and two in

✔ A 2003 agreement ensured that Ruedi

Utah stocked 13,600 bonytail chubs, 14,000 razorback suckers and more than 2,000 Colorado pikeminnow in the Colorado, Green and Gunnison rivers in 2003. Hatcheries are raising tens of thousands more fish for future stocking.

Reservoir would release 10,825 acrefeet annually for a 15-mile stretch of the Colorado River through 2012.

✔ About 177,000 juvenile pikeminnow were stocked in the San Juan basin in 2003 and another 300,000 were expected to be stocked in 2004.

✔ Retrofits to the Grand Valley Project canal system near Grand Junction helped make irrigators more efficient during severe drought, keeping 45,000 acre-feet in the Colorado River in 2002 and 33,000 acre-feet in 2003.

✔ The Colorado recovery program helped fund a 12,000 acre-foot expansion of Elkhead Reservoir near Craig that would designate 5,000 acre-feet with an option to lease another 2,000 acre feet, to provide late-summer water for endangered fish.

Colorado River basin, the Upper Colorado recovery program is specifically targeting non-native fish in the Yampa River.

✔ Since 1996, a fish ladder at the Redlands W HAT ’ S N EXT ?

Diversion Dam on the Gunnison River has helped 60 pikeminnow, six razorback suckers, one bonytail and more then 53,000 other native fish reach previously blocked habitat.

✔ San Juan managers have stocked about 900 juvenile and adult razorback suckers in the San Juan River, and larval razorbacks have been found in the river for the last six years, a sign that previously stocked fish are surviving and spawning.

✔ Non-native fish compete for food and space, and prey on endangered fish, eating their eggs and young.

Program biologists have tried to minimize or relocate some nonnative species, including northern pike, channel catfish and smallmouth bass. While non-native fish remain a problem throughout the

In the San Juan River Basin, program managers are studying past stocking efforts, trying to identify methods with the highest survival rates for stocked fish. They’re also using a new model to evaluate river flows in the basin, which could help them better manage fish populations. In addition, they are looking at projects such as construction of fish screens to keep endangered fish out of canals and other diversions.

In the Colorado and Gunnison rivers, what remains a challenge Kantola says, is acquiring in-stream flow rights from the state, in part because of the unpredictability of the flows. Instead, the program will continue to focus on agreements, like the ones with Grand Valley irrigators and Ruedi Reservoir managers, to keep water in the river.

“Any water that stays in the upper (Colorado River) basin is good for the fish,” Kantola says. ❑

USFWS researcher Bruce Haines seines the Green River near Dinosaur National Park in search of larvae from the Colorado pikeminnow.

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COLORADO FOUNDATION FOR WATER EDUCATION

LEGAL BRIEF

Water Rights for Recreation

Like to kayak? Pay attention. Worried the state doesn’t have enough water storage to supply our enlarging population? Pay attention.

Some praise the decision The Colorado Supreme Court just the application before it in favor of opining as a “complete win” for released a ruling on a case critical to decidgenerally on its perception of the appropriing how much water will be allowed to flow recreation, while others are ate stream flow and more reasonable recrethrough Colorado’s whitewater parks, and ational experience.” reassured that it how these water rights may affect future The court’s opinion also went on to reinforced the requirement upstream water development (e.g, confurther interpret the language of the 2001 struction of reservoirs). law, stating that it does not give the CWCB for whitewater courses Some praise the decision as a “complete authority “to dictate a flow rate or recreation to only get the minimum win” for recreation, while others are reasexperience for RICD water rights.” The court sured that it reinforced the requirement for stated the CWCB does have authority to amount of water neceswhitewater courses to only get the minimum evaluate the application against five major sary for a reasonable amount of water necessary for a reasonable concerns (see CWCB Review, p.20). If the recreational experience. recreational experience.

CWCB finds that the application for examIn the late 1990s, as the popularity of ple, does not promote maximum utilization whitewater parks increased, local cities and of the state’s waters or impairs fulfillment of water districts began applying for water rights to support river Colorado’s interstate water agreements, it can recommend the flows through their parks. In 2001, the state passed legislation water court deny the application. defining and setting boundaries for these water rights. They Further, the court found that the CWCB did not supcalled them “recreational in-channel diversions (RICD).” ply the water court with sufficient analysis of the Gunnison This newly created type of water right, by statute, application—considering the five major concerns cited in allows only the minimum amount of water necessary for a the 2001 RICD law—therefore the court wasn’t able to do a “reasonable recreational experience.” The Colorado Water complete job of evaluating the application, as required.

Conservation Board (the state’s water-policy making agency) is Ambiguous language in the 2001 legislation did not aid required to review and make recommendations to the regional matters. Much debate revolves around what constitutes the water courts regarding all applications for these water rights. “minimum stream flow” for a “reasonable recreational expeAfter the 2001 law passed, applications for recreational rience.” Ask whitewater course designer Gary Lacy what is water rights for cities around the state—Gunnison, Longmont, reasonable, and he is quick to respond that it depends on the Steamboat, Pueblo—began filing into water court. purpose of the park itself.

The first case to be decided under the new law was an “If the community wants to create a world-class whiteapplication by the City of Gunnison to secure rights for water park for freestyle boating, the purpose is big dynamic a kayak course in the Gunnison River. The city requested water features. Generally that requires significantly more a range of flows from May through September, with peak water than what the state considers ‘reasonable.’ But if flows of 1,500 cubic feet per second (cfs) in June. These they just want something you can float a boat down, with variable flows totaled more than 157,000 acre-feet annu- no attraction for visitors, then that is an entirely different ally (more water than is contained in Horsetooth Reservoir proposition.” near Fort Collins, for example). These flows also constituted The court also agreed that a “reasonable recreational more than 41 percent of the Gunnison River’s available experience in and on the water” involves an undetermined stream flow each year. amount of water that “will vary from application to applicaBy contrast, the CWCB recommended that Gunnison tion depending on the stream involved, and the availabilbe allowed only steady flows of 250 cfs from May through ity of the water within the basin.” Deciding the minimum September. When the water court approved Gunnison’s amount necessary will involve hearing conflicting expert flows as requested, opposers including the State Engineer’s testimony, including CWCB recommendations.

Office, CWCB and others, instantly appealed the case.

So it’s back to the drawing board. The CWCB In the Colorado Supreme Court’s decision released in must provide another set of recommendations for the mid-March, the court found that both the CWCB and the Gunnison application, and the case will be sent back to water court erred in this case. According to the court’s water court for further interpretation. The size of the opinion, the CWCB failed to evaluate the flows requested in waves in future Colorado whitewater parks has not yet Gunnison’s application. Instead, the CWCB “literally ignored been decided. ❑ HEADWATERS – SPRING 2005

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LEGAL BRIEF

Water Rights for Recreation

Instream Water Rights v. Recreational Water Rights INSTREAM FLOW WATER RIGHTS allow water to stay in the stream channel “to preserve or improve the natural environment to a reasonable degree.” Instream flow water rights can only be held by a state agency, the Colorado Water Conservation Board. In 2003, the state passed legislation allowing water right holders, to loan water to the CWCB for instream flows, in times of drought. The state’s instream flow water rights often amount to no more than 10-15 cubic feet per second. More than 8,500 miles of stream throughout the state have been protected by this program.

RECREATIONAL IN-CHANNEL DIVERSION WATER RIGHTS allow water to stay in the stream channel to be controlled by structures that create specific recreational features for rafting and kayaking, for example. These water rights can only be obtained by cities, counties, and water districts. This newly created type of water right, by statute, allows only the minimum amount of water necessary for a “reasonable recreational experience.” The Colorado Water Conservation Board is required to make findings and recommendations to the regional water courts regarding all applications for these water rights. Recreational water rights are generally requested only for the summer months (May-September), and may demand variable flows ranging from 50 to 1,800 cfs or more.

2001 State Legislature passes new law recognizing “recreational in-channel diversions” Pending Applications

Town

River

Water Right Requested*

2002†

Gunnison

Gunnison River

270 - 1,500

2002

Pueblo

Arkansas River

100 - 500

2004

Steamboat

Yampa River

120 - 1,700

2004

Chaffee County

Arkansas River

250 - 1,800

2004

Silverthorne

Blue River

100 with up to 600 cfs for three

(cubic feet per second, cfs)

weekends each summer

* Note that the amount of water appropriated or requested often varies seasonally, with peak flows generally occurring in June. † Case recently decided by the Colorado Supreme Court.

CWCB Review

The Colorado Water Conservation Board is required to make recommendations to the water court regarding all applications for these water rights. By statute, CWCB reviews must consider five main areas: • Whether the water right will impair Colorado’s ability to pursue use of water allotted to it under interstate agreements; • Appropriateness of the stream reach for the requested use (e.g., whitewater park); • Access availability; • Whether exercise of this recreational water right will injure other instream flow rights in the river; • Whether the requested water right promotes maximum use of the state’s waters.

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Sandhill cranes ock to the central Platte River in Nebraska as part of their annual migration. A handful of endangered whooping cranes also may stop at this area of the Platte River while moving between their wintering grounds

at the Arkansas National Refuge in South Texas and their nesting areas in Canada. Learn more about Colorado’s attempts to provide water for crane habitat along the Platte River on p.14. Photo by Jim Richardson.