Among all the rivers in the world, the Colorado River is among the most historic.  The Colorado River basin drains water from seven states, is the largest watershed in the Southwest, and comprises roughly one-twelfth of the contiguous United States. Ten freshwater species of fishes have called this area home, but four are listed as endangered under the Endangered Species Act (“ESA”): bonytail chub (Gila elegans), Colorado pikeminnow (Ptychocheilus lucius), razorback sucker (Xyrauchen texanus), and humpback chub (Gila cypha).

Despite evolving and swimming in the upper Colorado River basin (the “Basin”) for more than three million years, these four fishes have the highest rate of jeopardy toward extinction of any fishes in the nation.  Only five populations of humpback chub and two populations of Colorado pikeminnow exist in the Basin.  Although hatchery restocking has occurred, there are no known populations of wild razorback suckers in the Basin and no known reproducing populations of bonytail in the world.

The Causes of Endangerment

While debatable to degrees, the causes of imperilment, extirpation, and extinction are certain and multiple: streamflow regulations (e.g., dams and reservoirs), water depletions, habitat modifications, pollution, non-native fishes, altered food webs, parasites, and even intentional poisoning.  Piled on top of these “natural” issues are rights to water: property rights created by the Colorado Compact, federal laws, court decisions and decrees, contracts, and regulatory guidelines, known collectively as the “Law of the River.”

Conflict and Change

A major shift in environmental thinking led to passage of the National Environmental Protection Act and the ESA in 1969 and 1972, respectively.  Soon after enactment of these laws, controversy became the central focus of the Colorado River.  The Colorado River Water Conservation District sued the federal government challenging the listing of the Colorado pikeminnow and humpback chub as endangered under the ESA.  Water developers challenged certain instream flow determinations by the U.S. Fish and Wildlife Service (“FWS”).   By 1984, FWS had issued biological opinions concluding that nearly 100 specific water projects were likely to jeopardize the continued existence of endangered Colorado River fishes.   By the mid-Eighties, application of NEPA and the ESA threatened to bring all development to a halt and simultaneously further endanger the Basin’s native fishes.

Realizing that litigation was the least attractive way to solve the myriad of problems, the FWS combined with other interested parties to form the Upper Colorado River Basin Coordinating Committee in 1984.   Over the next four years, this committee sought to consider development and fish recovery from every angle.  As a result of this committee’s work, a cooperative agreement and the Upper Colorado River Basin Endangered Fish Recovery Program (“Recovery Program”) emerged in 1988.  In 2013, the parties to the agreement extended the Recovery Program through September 30, 2023.

Lofty Goals

The express purpose of the Recovery Program is to “recover endangered fish in the Upper Colorado River Basin while water development proceeds in accordance with federal and state laws and interstate compacts.”  The Recovery Program has five key recovery elements:  instream flow identification and protection, habitat restoration, nonnative fish management propagation and stocking, research and monitoring, and information and education.  The Recovery Program is a conglomerate, informally known as “strange bedfellows,” consisting of thirteen federal agencies, three western states, water users, power users, and environmental groups.

The preeminent goal of the Recovery Program is to “downlist” the four endangered native species from endangered to threatened and, ultimately, to “delist” them.  The FWS applies established criteria for downlisting and delisting each species.  These criteria focus on a minimum number of distinct fish populations in distinct portions of the river system, minimum population sizes, and specific biological characteristics for each population.  For example, the FWS will downlist the humpback chub when the agency can establish that, over a five-year monitoring period, the species has maintained six distinct populations (defined as “no net loss”) and has one core population in the upper and lower Colorado River basins greater than 2,100 adults.  The FWS will delist the humpback chub when it can establish that, for an additional three year period beyond downlisting, the species has maintained the six populations, has two core populations in the upper basin of greater than 2,100 adults and has one core population in the lower basin of greater than 2,100 adults.

In 2002, the FWS predicted that downlisting the humpback chub could be proposed in 2007 and delisting could be proposed by 2010; downlisting the Colorado pikeminnow could be proposed in 2006 and delisting could be proposed in 2013; and downlisting the razorback sucker and bonytail chub could be proposed in 2020 and delisting could be proposed in 2023.   As of 2012, anticipated downlisting for the humpback chub and Colorado pikeminnow has been pushed back to 2020 and 2018, respectively.

The Cost of Recovery

For the fiscal years 1989 to 2013, the Recovery Program expended $293,157,700.  For this twenty-five-year period, the average yearly expenditure was $11,726,308.   Applying the yearly average expenditure stated above to the next ten years, and not accounting for possible increases in expenditures or inflation, the total projected expenditure over thirty-five years in current dollars is $410,420,480.  Combining the present value of the expenditures over the past twenty-five years ($519,614,165) with the future value of expenditures over the next ten years ($95,110,862), the total expenditure from 1989 to 2023 can be estimated at approximately $614 million in current dollars.  This equates to over $153 million per fish species over the thirty-five year period, or over $4 million per species per year.

Who finances the Recovery Program?  Historically, the U.S. Bureau of Reclamation and FWS (with annual approval from the U.S. Congress) contribute some 54% of the required funds.  Power companies (e.g., dam operators) contribute 37%, states contribute 14%, and various other entities contribute 3%.  Appropriators contribute only 1% toward the Recovery Program’s budget, and these payments go toward avoiding a jeopardy determination.

Success or Failure?

Despite twenty-five years of good intentions, one serious question remains:  Has the Recovery Program been successful?   The answer depends on who you ask.  According to the Recovery Program itself, “With its demonstrated successes, the Upper Colorado River Endangered Fish Recovery Program has become a national model for its collaborative conservation efforts to protect endangered species.”  Indeed, the Recovery Program provides ESA compliance for approximately 2,025 water projects depleting more than 3.7 million acre-feet per year.  Quite remarkably, and likely due to the successful collaborative process, no lawsuits have been filed on ESA compliance for any of these water projects.  John Loomis, a professor at Colorado State University, recently analyzed the social benefits of the Recovery Program.   After conducting a detailed analysis and comparing the Recovery Program’s ESA compliance with “business as usual” (i.e., litigating ESA compliance), Professor Loomis concluded that the Recovery Program “yield[ed] $315 million in net cost savings over the two decades that the cooperative Recovery Program has been in place.”  The FWS is charged with the responsibility of evaluating the Recovery Program and determining whether “sufficient progress” has been made toward recovery.  Although the term “sufficient progress” is not defined in any of the Recovery Program agreements, the FWS has found “sufficient progress” every year.

Still, others cast a dubious eye upon the Recovery Program.  According to author and attorney Robert Adler, “Stepping back from the details of the specific restoration efforts up and down the river, one thing is abundantly clear.  For the most part, they are not working.  Populations of endangered species continue to decline, despite years of study and planning and millions of dollars spent.”  According to On the Colorado, a website that “delivers the latest news and views” about issues impacting the Colorado River, “bureaucratic bean counting is essentially why these fish suffer.”  In 2006, the Post Independent reported that the FWS and Colorado Department of Wildlife’s practice of removing non-native sport fish as a way of encouraging native fish recovery “has outraged many.”   Among the dissenters, former Colorado Wildlife Commissioner Rick Enstrom referred to the Recovery Program as a “boondoggle.”

Conclusion

Over the course of a quarter-decade, under the supervision of the Upper Colorado River Basin Endangered Fish Recovery Program, populations of four endangered fishes native to the upper Colorado River basin – humpback chub, Colorado pikeminnow, bonytail chub, and razorback sucker – have not increased significantly.  On the other hand, and perhaps most importantly, they have not gone extinct, and no species is likely to be delisted before the Recovery Program celebrates its thirtieth anniversary.  If success is measured by “extinction or not,” then the Recovery Program is clearly a success, at least at this point in time.  Decades of imperilment have been halted, if not reversed.  Alternatively, if success is measured by dollars spent, then over $4 million per species per year could be considered expensive relative to the nominal increases in species populations.  Even despite the Recovery Program’s best efforts, a single natural or environmental disaster could devastate any of the four endangered species’ populations and preclude delisting.  In the end, the success or failure of the Upper Colorado River Basin Endangered Fish Recovery Program will be measured by future, undefined, uncertain events.

 


Sources:

Endangered Species Act, 16 U.S.C. § 1531 (2012).

Robert W. Adler, Restoring Colorado River Ecosystems: A Troubled Sense of Immensity (2007).

Gordon A. Mueller, Predatory Fish Removal and Native Fish Recovery in the Colorado River Mainstem: What Have We Learned?, 30 Fisheries 9 (2005), available at  http://fisheries.org/docs/fisheries_magazine_archive/fisheries_3009.pdf.

John Loomis and Jeffrey A. Ballweber, A Policy Analysis of the Collaborative Upper Colorado River Basin Endangered Fish Recovery Program: Cost Savings or Cost Shifting?, 52 Natural Resources Journal 337 (2012).

John Weisheit, The Endangered Fish of the Colorado River Basin, On the Colorado (Jan. 1, 2009), http://www.onthecolorado.com/articles.cfm?mode=detail&id=1230799075869.

Eric Yonts, The reel deal, Post Independent (Aug. 16, 2006), available at http://www.postindependent.com/article/20060816/SPORTS/60816016.

Memorandum from Stephen Guertin, Region 6 Regional Director, U.S. Fish & Wildlife Service, to Implementation/Management Committee, Consultants, and Interested Parties for the Upper Colorado River Endangered Fish Recovery Program, p. 10 (June 11, 2011), available at http://www.riversimulator.org/Resources/USFWS/RIP/SufficientProgress2011June13.pdf.

Karen Hopfl, Case Study of The Endangered Fish Recovery Program of The Upper Colorado River (Feb. 1994) (unpublished manuscript), available at http://www.colorado.edu/conflict/full_text_search/AllCRCDocs/94-57.htm.

Tom Pitts, Upper Colorado River Endangered Fish Recovery Program, (Power Point presentation) (Sept. 15, 2006), available at http://www.crwcd.org/media/uploads/2006_Seminar_Mr_Pitts.pdf.

Upper Colorado River Endangered Fish Recovery Program, http://www.coloradoriverrecovery.org (last visited Jan. 12, 2014).

Upper Colorado River Endangered Fish Recovery Program, Implementing Innovative Solutions to Manage Water and Hydropower Resources While Recovering Endangered Species: Highlights 2012-2013, available at http://www.fws.gov/southwest/sjrip/pdf/20122013highlights.pdf.

U.S. Fish & Wildlife Service, Humpback Chub Recovery Goals, Amendment and Supplement to the Humpback Chub Recovery Plan (Aug. 1, 2002), available at http://www.riversimulator.org/Resources/USFWS/Recovery/Humpbackchub.pdf.

 

The title picture is of a bonytail chub.  The picture is attributed to Haplochromis and is covered by the Creative Commons Attribution 2.0 Generic license. The use of this picture does not in any way suggest that Haplochromis endorses this blog.


Firebaugh Canal Water Dist. v. U.S., 712 F.3d. 1296 (9th Cir. 2013) (holding that the Department of the Interior is only required to provide drainage for lands within the San Luis Unit, has discretion to choose a drainage solution other than an interceptor drain, and is not liable under the Federal Tort Claims Act for failing to provide drainage to downslope lands).

In 1960, Congress passed the San Luis Act (“Act”), which authorized the Department of the Interior (“Interior”) to create and maintain the San Luis Unit (“Unit”).  The Unit was to provide irrigation water for five hundred thousand acres of land in three California counties as part of the Central Valley Project, the largest water reclamation project in the nation.  The Act required the Interior to construct a dam, reservoir, pumping plants, drains, and other facilities in the Unit, and authorized the Interior to participate in the construction of drainage facilities to serve the general areas affected by the Unit.  Concerned that the Unit would increase regional drainage requirements, Congress conditioned the creation of the Unit on adequate assurance that the State of California would provide for a master drainage outlet and the Interior constructing an interceptor drain.  Although California declined to provide a master drainage outlet, the Interior began constructing the interceptor drain. The Unit started making water deliveries in 1967.

However, the inability of federal and state governments to agree on environmental standards prevented the Interior from completing the endpoint of the interceptor drain.  Awaiting approval to finish the interceptor drain, the Interior constructed the middle portion of the drain and the Kesterson Reservoir (“Kesterson”) to receive the Unit’s output in 1975.  In 1983, studies revealed elevated levels of selenium in Kesterson drainage water.  The Interior closed Kesterson and the drains leading to it in 1986.  Nonetheless, the Interior continued to irrigate land within the Unit.

Several parties affected by the lack of drainage filed claims in the District Court of the Eastern District of California (“district court”), with the Firebaugh Canal Water District (“Firebaugh”) as the only party located outside the Unit.  In 1995, the district court heard these claims consolidated under Firebaugh and ruled that the Interior must provide drainage to the Unit.  The district court ordered the Interior to pursue a discharge permit from the California Water Resources Control Board for the completion of the interceptor drain.  The Interior appealed, and the Ninth Circuit Court of Appeals (“court”) heard Firebaugh I in 2000.  The court upheld part of the district court’s ruling, requiring the Interior to provide drainage within the Unit.  However, the court held that the district court could not override the Interior’s discretion on how the drainage requirements are satisfied.  Accordingly, the court gave the Interior authority to pursue alternative options rather than complete the interceptor drain. The court remanded the case back to the district court for further proceedings.

On remand, the district court ruled consistent with the court’s holding.  The district court ordered the Interior to provide drainage to the Unit immediately but gave the Interior broad discretion in selecting a drainage solution.  The district court required only that the Interior submit a plan describing anticipated actions and milestones.  After a reevaluation of the Unit’s drainage needs, the Interior announced in 2007 an in-valley solution that relied on water treatment and reuse, evaporation ponds, and restricting irrigation to some in-Unit areas.  The Interior had secured $7 million in appropriations toward the in-valley solution as of 2011, although the project is estimated to total $2.69 billion.

After all parties located inside the Unit settled with the Interior in 2002, Firebaugh was the only plaintiff to initiate a new suit against the Interior.  Firebaugh presented two pertinent claims.  First, Firebaugh sought damages under the Federal Tort Claims Act (“FTCA”), arguing that the Interior’s failure to provide drainage constituted a nuisance and trespass.  Second, Firebaugh, invoking the Administrative Procedure Act, argued that the Interior’s failure to provide drainage constituted (1) a final agency action that was arbitrary, capricious, an abuse of discretion, and otherwise, not in accordance with law; and (2) agency action unlawfully withheld or unreasonably delayed.  The district court dismissed Firebaugh’s first claim on two grounds, holding that under California law water, suppliers are not required to prevent drainage onto downslope lands, and that the Interior was immune from a FTCA claim due to the discretionary function exception.  The district court rejected Firebaugh’s second claim as well, holding that the Interior’s only discrete duty was to provide drainage within the Unit, and although its actions were frustratingly slow, the Interior’s actions did not presently constitute an unreasonable delay.  Firebaugh appealed the district court’s decision.

Addressing the first issue on appeal, the court reviewed the district court’s determination that both the private analog requirement and the discretionary function exemption barred Firebaugh’s claim.  Under the private analog requirement, a government agency is liable for negligence only if a private person would be liable for similar acts.  With no precedent on point, the court assumed the existence of a private analog and proceeded to the discretionary function analysis.  To determine if the discretionary function exemption applied, the court inquired whether the challenged actions involved an element of judgment or choice, and whether that judgment was the kind of discretionary function that the exemption was designed to shield governmental actions based on public policy concerns.  Firebaugh argued that the exemption should not apply because the Act imposed a duty on the Interior that was divorced from discretion.  The court rejected this argument based on its Firebaugh I ruling, holding that the Interior had broad discretion in providing a drainage solution.  Furthermore, the court reasoned that the Interior’s actions were grounded on multiple public policy concerns, and therefore, the discretionary function exemption applied, negating Firebaugh’s first claim.

For Firebaugh’s second claim to prevail, the court required Firebaugh to demonstrate that the Interior failed to take a discrete action that it was legally required to take.  Firebaugh argued that the Interior failed to make two specific actions required by the Act: (1) to provide drainage to lands outside the Unit, and (2) to provide drainage to lands inside the Unit.  The court rejected these assertions.  First, the court held that the Act merely authorized the Interior to construct drainage facilities outside the Unit, with no actual requirement to do so.  The court reasoned that the Interior’s discretion ended when it decided to construct the Unit as authorized by the Act.  Congress never gave the Interior the discretion to choose necessary drainage facilities, so providing drainage to lands outside the Unit was not a discrete action that the Interior was required to take.  Second, although the court recognized that progress on the in-Unit drainage solution was slow, the court held that the Interior was not withholding nor unreasonably delaying drainage within the Unit.  The court reasoned that the scope and cost of the project was the root of the delay, not the Interior failing to take action.  The court recognized that at some point the Interior’s sluggish progress could constitute a failure to provide in-Unit drainage; however, the court concluded that that point had not yet been reached.  Therefore, Firebaugh’s second contention failed as well.

The court affirmed the district court’s ruling that the Interior was not required to provide drainage to lands outside the Unit, the Interior was not unlawfully withholding nor unreasonably delaying drainage within the Unit, and that the discretionary function exemption prohibited a federal tort claim against the Interior.

 

The title picture is of Lake Casitas, a reservoir located in southern California.


Environmental Entrepreneurs (“E2”) is an independent non-partisan organization uniting business and environmental leaders to shape state and national policy.  E2 is an affiliate of the Natural Resource Defense Council (“NRDC”).  Donations supporting E2 go through the NRDC, and the two organizations share staff.  Due to the close affiliation between the two non-profits, the NRDC and E2 both value environmental advocacy and sustainability; however, E2’s mission expressly seeks engagement of business leaders to achieve the shared goals of the affiliated organizations.  E2’s mission is “[t]o create a platform for independent business leaders to promote environmentally sustainable economic growth.”

On October 29, 2013, at Deloitte Consulting’s office in downtown Denver, E2 hosted a panel to discuss the topic “Water Wise: Meeting Colorado’s Water Challenges.”  Panelists included Will Sarni, Director of Enterprise Water Strategy at Deloitte; Jerry Tinianow, Chief Sustainability Officer of the City of Denver; Greg Fisher, Chief Planner for the Denver Board of Water Commissioners (“Board”); and James Eklund, Director of the Colorado Water Conservation Board (“CWCB”).  In light of E2’s recently released report titled “Colorado Water Supply and Climate Change: A Business Perspective,” each speaker addressed questions relating to water conservation and efficiency in Colorado.

Will Sarni discussed three categories of value that he contemplates when consulting with a wide variety of companies to strategize their water management.  Sarni asserts that the three risk categories for business value are physical risks, regulatory risks, and reputational risks.  Physical risks could be the temporary unavailability of water, for instance.  Regulatory risks range from the reallocation of water away from business production to meet more urgent needs during times of drought to the suspension or withdrawal of the supplier’s license or permit.  Reputational risks refer to the potential for negative exposure or public outcry against a business for its water-use practices.  Among other things, when Sarni consults with a business about the location of manufacturing plants, he asks whether the business will have access to water in twenty years at that location and from where the water to support growth projections will come.  Will Sarni’s role at Deloitte Consulting led him to encourage business leaders to incorporate water stewardship into their corporate risk management plans.

Denver’s Chief Sustainability Officer, Jerry Tinianow, discussed the city government’s sustainability agenda.  Denver’s plan encompasses twelve areas: air quality, climate change, energy, food, health, housing, land use, materials, mobility, workforce, water quantity, and water quality.  For each of the twelve resources, Tinianow has specific goals for the government with a separate, but complementary, set of community goals.  Tinianow expressed Denver’s goal to reduce irrigation of parks and golf courses by 22% to an eighteen gallon per square foot average and to reduce use of potable water in city buildings by 15% from a 2011 baseline.  Tinianow stressed that half of the water used in Denver currently goes toward watering golf courses and parks, and he seemed optimistic about meeting Denver’s conservation goals by 2020.

Greg Fisher, the Chief Planner for Denver Water, outlined how the Board supplies the Denver area with sufficient clean water and how it plans to do so in the future.  As Fisher explained, Denver Water serves 25% of Colorado’s population while only using 2% of the state’s water.  Fisher claimed there are still conservation opportunities but acknowledged Denver Water’s successes thus far.  Fisher asserted that Denver Water serves 30 to 40% more people than it did in 1980, yet Denver Water uses the same amount of water as in 1980.  One contributing factor for this conservation success was the dramatic reduction in household use that occurred when Denver Water installed meters on all homes in 1990.

In terms of future conservation, Denver Water’s current goals involve a push for innovation of WaterSense-labeled indoor fixtures and higher water efficiency levels for households.  Since multifamily homes use half as much water per household on average than single-family homes use, Fisher encouraged thoughtful land use planning as a tool to achieve higher efficiency.  Denver Water will continue employing their four-tiered rate scale in the future, which incentivizes conservation.  The affordable first tier rate ($2.59 per 11,000 gallons per month) accounts for most households’ entire water use, but the cost of water increases sharply above that tier because using more than 11,000 gallons per month indicates outdoor watering.  Fisher argued that this tiered scale is a practical and equitable solution because it allows everyone to have cheap access to the amount of water they need to live, and it discourages water uses views as inefficient, such as watering grass.  While Denver Water seems poised and ready for Colorado’s water future in the short term, Fisher predicted that more extreme solutions may be required if the state’s population doubles from five million people to ten million by 2050, as many people expect.

Finally, James Eklund, Director of the CWCB, discussed the context of Colorado’s water situation and the creation of a comprehensive water plan.  He asserted that in certain settings – education, healthcare, and transportation, for example – we fear the unknown; however, with water issues, we fear the known because there are so many studies and statistics predicting a dry future for the American West.  Eklund encouraged the audience to trust the state demographers’ accuracy in their projections of an additional two million people in Colorado by 2030.  Eklund stressed how critical it is for Colorado to have its intrastate water agreements in order due to Colorado’s status as a headwater state with many binding compacts.  Arizona, Colorado, and Washington are the only states in the West without comprehensive water plans.  Through an executive order in May 2013, Governor John Hickenlooper directed the CWCB to commence work on the Colorado Water Plan, which Eklund is currently working on.

The CWCB’s comprehensive water plan will be a dynamic document amended every two to five years.  Eklund stated that the CWCB’s goals include addressing the gap between supply and demand, incentivizing quicker regulatory processes for businesses wanting to establish in Colorado, and devising a statewide comprehensive water plan.  Eklund also called for the need to formulate alternatives to “buy and dry,” which refers to users (typically municipalities) in one location buying water rights from other users (typically farmers), resulting in the drying up of vast swaths of farm land.  Eklund concluded by reminding the audience that Mother Nature and hydrology require that we move quickly.

The E2 conference served as a platform to begin an informed conversation between entities that value a strong economy built on responsible water use and conservation.  A predictable and secure water future for the West is in the best interest of the community and the economy, so E2’s effort to engage a wide array of participants in the discussion is a step in the right direction.

 

The title picture is of downtown Denver, Colorado.  The picture is attributed to George Miquilena and is covered by the Creative Commons Attribution-Share Alike 2.0 Generic license. The use of this picture does not in any way suggest that George Miquilena endorses this blog.


As part of its two-day conference, the South Platte Forum hosted a panel that discussed Colorado agriculture and the effects of the September 2013 floods on livestock and crops in the South Platte Basin.

The first speaker, David Petrocco, a local vegetable farmer in Adams and Weld Counties, discussed the basics of local agriculture, including methods of applying water to crops, water conservation, and the beneficial uses of water.  As Petrocco explained, timely irrigation is every farmer’s main concern.  Without adequate water, certain crops would stress, thus affecting their marketable quality.  Irrigation wells were useful resources for timely irrigation prior to 2006.  However, due to severe drought in 2006 the State of Colorado shut down many irrigation wells, which impacted the production of crops.

Most importantly, Petrocco discussed the challenges of water conservation.  Noting the importance of agriculture, Petrocco suggested that, along with improving irrigation efficiency, water conservation efforts should focus on cities and municipalities decreasing the watering of golf courses, parks, and road frontages in order to provide more water to agriculture.  Petrocco also relayed the problems of pondweeds, aggressive vegetation that grow on the bottom of rivers, that raise water levels, restrict the water’s flow, and ultimately consume a great amount of the water in which they grow.  Even though the South Platte River’s water quality has improved greatly, Petrocco argued these pondweeds were a growing concern deserving immediate attention.

Next, Adrian Card and Keith Maxey discussed the on-the-ground impacts of the September 2013 flood on the Colorado farming community.  Card serves as Boulder County’s Agricultural and Natural Resources Extension Agent with Colorado State University in Boulder County.  Maxey is the Weld County Director and Livestock Extension Agent with Colorado State University.  Their presentation started with a video showing aerial footage of the flooding and its subsequent destruction in Longmont and other areas of Colorado.

In addition, Card and Maxey spoke on how the flooding greatly affected mountain communities by destroying roads and restricting access.  In Weld County, the flood closed over one hundred roads.  Even a month after the flooding, crossing over the Platte River was cumbersome for children to get to school and for farmers to make product deliveries.

Card and Maxey then discussed floodwater contamination on local crops.  Concerned with floodwater mixing with various contaminants like raw sewage, oil and gas spills, and pesticides from agricultural fields, the United States Food and Drug Administration declared that any crop touched by floodwater was adulterated and thus unmarketable.  This had a dramatic and expensive toll on the affected Colorado farmers.  In the South Platte Basin, crop loss from floodwaters is estimated between $3.5 and $5.5 million.

The last speaker, Sean Cronin, discussed what water providers focused upon in the aftermath of the flood.  Cronin is the executive director for the St. Vrain and Left Hand Water Conservancy District.  Cronin reported that in District Five of the Conservancy District the flood damaged 101 ditches and reservoirs, amounting to almost ten million dollars of estimated damage.  Cronin mentioned, however, that this estimate may go down as water levels subside and the infrastructure shows less damage than previously feared.

Cronin then discussed flood recovery.  First, Cronin mentioned the availability of Federal Emergency Management Agency Public Assistance to those who apply.  Second, Cronin mentioned Colorado Water Conservation Board (“CWCB”) loans and grants, which apply to individuals who experienced approximately one to two million dollars in damages.  The loan carries no interest and no payments for three years.  Third, Cronin mentioned partnerships forming between many different agencies interested in helping support the affected water users.  Lastly, Cronin described local “stream teams,” which consist of local volunteers, engineers, and water experts.  The CWCB headed the state “stream team,” which provided technical assistance to local groups by coordinating and aiding them with financial assistance and permits.  However, aiding water users without creating conflicts and obstacles proved challenging.  Justifiably, water users want to make long-term repairs immediately even though it might be more beneficial and financially prudent to make incremental short-term repairs.

Cronin commended the emergency response teams and acknowledged the heroism, human kindness, and leadership during the devastating floods.  However, he also stressed that Colorado lacked any kind of emergency flood plan and argued Colorado needed to address this and plan for future floods.

Overall, the panel extensively addressed the concerns of the September flooding, the affects of the flooding, and what Colorado could do better for the future.

 

The title picture is of the north fork of the South Platte River, located in Buffalo Creek, Colorado.  The picture is attributed to Jeffery Beall and is protected by the Creative Commons Attribution 3.0 Unported license.  The use of this picture does not in any way suggest that Jeffery Beall endorses this blog.


As part of its twenty-fourth annual proceedings, the South Platte Forum hosted a discussion on fish in the South Platte Basin.  Titled “Swimming In,” the three-part discussion focused on the heritage of Colorado’s state fish, fish management by flow management, and improvement of urban streams for native warmwater fishes.

Dr. Kevin Rogers, a fisheries scientist and member of the Aquatic Research Group for Colorado Parks and Wildlife (“CPW”), spoke about the greenback cutthroat trout (the “greenback”), Colorado’s state fish since 1994.  Often referred to as the blackspotted trout and once believed to be extinct, in 1973 the greenback was one of the first species listed as endangered under the Endangered Species Act (“ESA”).  Downlisted from endangered to threatened in 1978 and currently poised for delisting entirely, Dr. Rogers noted the greenback is one of the “shining stars” of the ESA due to the success of multiple conservation efforts.

Genetics probably is not the first thing that comes to mind when one ponders fish, but Dr. Rogers described recent research and scientific analyses of the greenback’s DNA that revealed much about the greenback’s lineage.  For example, in the mid-1850s, William A. Hammond, a Civil War surgeon and eventual Surgeon General of the United States Army, served as medical officer on an expedition from Fort Riley, Kansas that attempted to find a pass to the Oregon Trail.  Dr. Rogers obtained copies of Hammond’s notes sent to the National Archives at Philadelphia after his expedition.  In these notes, Hammond mentioned the blackspotted trout.  Dr. Rogers plotted Hammond’s notes on a timeline and determined that Hammond made his notes regarding the blackspotted trout in what is now Colorado.  Hammond also managed to collect and send trout specimens to the National Archives.  Dr. Rogers reported that scientists analyzed DNA taken from these preserved specimens and confirmed that the fish that eventually became Colorado’s state fish derived from around sixty populations of Colorado River cutthroat trout on the Western Slope.

Dr. Rogers stated that Colorado has been home to six distinct lineages of greenbacks, but a fire near Pagosa Springs in the summer of 2013 wiped out one of these populations.  Another of these six lineages, which Dr. Rogers considers “the true greenback cutthroat trout” due to its lack of hybridization, is native to the South Platte Basin on Bear Creek near Colorado Springs.  In mid-September 2013, historic rains increased the flow on this creek from a normal flow rate of five cubic feet per second (“cfs”) to an estimated 169 cfs.  According to Dr. Rogers, the September 2013 flood might actually improve these fishes’ habitat on Bear Creak, “assuming they are still there.”

In a discussion entitled “Managing Fish by Managing Flows:  A Wild Rainbow Story in Elevenmile Canyon,” Ken Kehmeier, Senior Aquatic Biologist in the Platte Basin for CPW, discussed recent successes in wild rainbow trout management.  Elevenmile Canyon lies southwest of Lake George in Park County, Colorado.  CPW manages the upper section of the canyon as a self-sustaining wild rainbow trout fishery, which means no stocking is required.

Since 2003, the rainbow trout population in this area consistently declined.  In light of this realization, Mr. Kehmeier and his associates began studying the factors that might have contributed to this decline.  According to Mr. Kehmeier, rainbows in this area tend to spawn in mid- to late-April depending on the temperature of the water, which can be altered by warm-water releases from the Elevenmile Canyon Dam.  After studying years of data, Mr. Kehmeier’s team determined that in years with sustained populations of rainbows, flow rates downstream of Elevenmile reservoir and Spinney Mountain reservoir were stable.  However, in recent years with demonstrated low rainbow population growth, overlapping data suggested that flows created by “untimely” releases from these reservoirs were responsible for the population decline.  Mr. Kehmeier said releases from the reservoir in April and June simply “washed out” trout eggs and fry and depleted the populations.

As a result of his team’s findings, CPW met with officials from Denver Water and Aurora Water in March 2011 and February 2012 to discuss possible changes to releases and flow rates downstream of Elevenmile Canyon to attempt to increase the wild rainbow trout population.  According to Mr. Kehmeier, the existing population of rainbows in the upper section of the canyon increased by only seventy fry in 2010.  As the result of collaboration with the pertinent water authorities, the existing population in the upper canyon section grew by a total of 672 fry in 2011 and 2012.  In 2013, demands on Denver Water prevented it from mimicking the improvements in the previous two years.  As a result, the population of trout fry declined once again, thus strengthening the relationship between flow rates and wild rainbow trout populations in the upper section of Elevenmile Canyon and the need for continued collaboration between water managers and fisheries managers.  Mr. Kehmeier stated that even with losses in 2013, “if the wild rainbow trout population can increase two to three years out of every five, the overall population will tend to improve.”

With respect to the September 2013 flood, Mr. Kehmeier said river fish populations experienced virtually no changes.  In fact, from a fisheries standpoint, Mr. Kehmeier said the flood was “almost an ecological reset on a lot of our rivers,” essentially a cleaning of the rivers.

In the final discussion of “Swimming In,” Ashley Ficke discussed how to improve urban streams for native warmwater fishes.  Ms. Ficke, a doctoral candidate in fisheries biology at the University of Colorado at Boulder, described the South Platte as an “urban stream,” a transition zone between the mountains and the plains.  According to Ficke, “transition zone streams” in Colorado are highly modified because of their spatial relation to urban areas, differing greatly from mountain and plains streams in terms of geomorphology, physicochemical characteristics, and hydrology.

Ms. Ficke described urban streams as home to a unique combination of species that tend to have a large diversity of body size, lifespan, and reproductive strategy.  Accordingly, urban stream species have “impressive physiological tolerances” to large temperature ranges, dissolved oxygen levels, and salinity levels.  As illustrations of their ability to adapt to changing needs, urban species tend to be omnivorous and can make wide changes in habitats if compelled to do so by flooding or seasonal changes.

Despite a high tolerance to urban environments, Ms. Ficke stated that assemblages of fish in urban streams are declining.  These declines are due to “extensive human modifications” in and around the streams such as alterations of flow rates, sedimentation, changes to water quality, fragmentation, channelization, and introduction of nonnative species.  According to Ms. Ficke, changes in flow patterns caused by dams and diversions can adversely affect opportunities for foraging, spawning, and refuge.  Changes in sediment regimes can suffocate incubating eggs and increase competition for food and predation amongst existing populations.  “More water is not always beneficial,” according to Ms. Ficke, and refuge can be limited during spates and floods, and habitats can become limited for spawning and rearing. Hence, urban fish have “nowhere to hide” in channelized systems.  Ms. Ficke concluded by stating that the persistent introduction and growth of nonnative species in urban streams will continue to pose significant challenges to existing and future populations of urban fish species.

“Swimming In” proved to be a useful mix of history, biology, and reality.  From tracing the roots of Colorado’s state fish, to fisheries scientists collaborating with water managers to spur trout populations while maintaining domestic needs, to the challenges faced by fish that prefer the city to the country, these speakers fascinated and educated the attendees of the twenty-fourth annual proceedings of the South Platte Forum.

 

The title picture is of the north fork of the South Platte River, located in Buffalo Creek, Colorado.  The picture is attributed to Jeffery Beall and is protected by the Creative Commons Attribution 3.0 Unported license.  The use of this picture does not in any way suggest that Jeffery Beall endorses this blog.