Climb me a river

by Zach Smith

There's something unreal about a dry riverbed, but the oddest empty river I ever encountered was just after arriving at a small town in western Colorado.  I was asking around about local climbing areas when I was told about an artificial wall for bouldering right at the edge of town.

Someone had bolted climbing holds onto the concrete supports of a bridge, so that whenever I rested between attempts to climb this ingenious training facility, I stood right on the bottom of the river, my feet completely dry.  And chronically dry, I figured, otherwise the bolter would have been forced to look for real rock.

Unfortunately, dried-up riverbeds aren't unusual in the West, where our unique system of granting water rights encourages us to drain rivers dry. As Westerners we're well aware of this dewatering -- from the salmon-run rivers of Northern California and Oregon to small streams in Idaho and Montana and Colorado. Finding equitable solutions that apply to large rivers continues to be fraught with controversy, but on small streams every now and then, a balance can be achieved.

One example starts with a ranch outside the high-mountain resort town of Crested Butte in western Colorado. The aging owner wanted to sell his land for subdivision and his water right along with it. The water right diverted water for irrigation from Washington Gulch, a tributary of the Slate River and eventually the Gunnison River. It was valuable because it was the most senior; during the irrigation season it could shut off other diverters upstream.  And once the water reached the headgate, it took every last drop, leaving the Gulch's stone skeleton to bleach in the sun.  It was all perfectly legal, and acutely devastating.

A nearby water district, looking to shore up its supply, began negotiating to purchase the water right. But the developer who had bought it wanted more money for it from the water district. It was at this point that the Colorado Water Trust got involved in the transaction.

The trust was formed in 2001 by a group of water attorneys, engineers and conservationists to bolster Colorado's Instream Flow Program and thereby protect and restore streamflows in the state. Created by the General Assembly in 1973, and run by the Colorado Water Conservation Board, the instream flow program is the only game in town when it comes to rewetting a stream. An instream-flow water right not only keeps water in a river, it also resembles a typical water right in that it belongs to a specific stretch of river, has a specific flow amount, and is owned by the Colorado Water Conservation Board, whose staff constantly monitors whether the right's flow is being met.

What's more, it has a priority date so that it can be administered within the "first in time, first in right" system.  Most importantly, when a water right's use is changed in Colorado Water Court, it still retains that priority date, so that a senior irrigation right can become a senior instream flow right.

Using this innovative tool, the Colorado Water Trust works in the water market as a broker, making deals to acquire water from willing sellers or lessors to send water back into rivers. Seeing an opportunity in the Washington Gulch transaction, the Trust and the Board proposed funding the price difference if the water district would divert the water 2.5 miles farther downstream than the rancher had, past Washington Gulch's confluence with the Slate, as well as grant the Board an instream flow right for the river stretch between the old point of diversion and a proposed new one.

In simpler terms, the Trust asked that the water district use the natural path of the stream itself as its water delivery system.  All parties agreed, and now the deal is off to water court for approval.

What did this all mean? The developer got the price he asked for. The water district got the water it needed. What's new is that Washington Gulch will have a protected instream flow with the most senior priority on the stream.  When the stream level drops, the board will place the call, and Washington Gulch and parts of the Slate will run wet.  It is all legal, and wonderfully healing.

Recently, the trust received a comment suggesting something along the lines of, "That's a lot of work for 2.5 river miles." Well, yes, it's a small step, but it's a good example of how we can use existing tools to fix at least a portion of our dry rivers. And I think the climbing community would agree that we weren't meant to train underneath bridges anyway.

Zach Smith is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is staff attorney for the Colorado Water Trust in Denver, Colorado.

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