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Dispute over in-stream rights stalls Sand Dunes legislation

Brief by Central Staff

Water politics – September 2000 – Colorado Central Magazine

At the start of the year, almost everything looked on track to expand Great Sand Dunes National Monument into Great Sand Dunes National Park.

It had the support of the U.S. Department of the Interior, Colorado’s state government, and Colorado’s entire congressional delegation with the exception of Rep. Joel Hefley of Colorado Springs (who said the Dunes weren’t so special as to deserve Park status).

Two bills were introduced in Congress. One’s in the House, from Rep. Scott McInnis, whose district includes the Sand Dunes, and the other is in the Senate, from Sen. Wayne Allard of Colorado.

The bills are quite similar. But there’s a snag, on account of one difference between the bills.

Both bills would require the federal government to go through Colorado water courts, just like anyone else, to establish any new water rights for the Great Sand Dunes National Park and Preserve. Existing reserved water rights for the Monument and adjacent National Forest would, of course, be protected.

But according to States News Service, the McInnis Bill could conceivably allow the feds to get in-stream flow rights. Colorado law says that only the Colorado Water Conservation Board can hold in-stream flow rights, and that is required in Allard’s Senate bill, but not McInnis’s.

In late July, Interior Department Solicitor John Leshy told Allard’s staff that, on account of the water language, the department would oppose Allard’s bill as written and urge a presidential veto if it passed.

Leshy wasn’t returning that reporter’s phone calls, but Stephen Saunders, the Interior Department’s deputy assistant secretary for parks, said Interior does support the House bill. Saunders said the department needs in-stream flow rights, since surface water “is a key part of the sand dunes and how they stay where they are.”

Congress went into its August recess shortly thereafter, so nothing is likely to change in the near future.

“We’re in a holding pattern,” said Sean Conway in Allard’s office. “The Interior Department has not contacted our office to begin negotiations.”

Conway said Allard remains optimistic that a Sand Dunes bill will pass, and that he believes Interior Secretary Bruce Babbitt still supports the legislation, with the difficulty coming from lower-level staff in the department.

Steve Chaney, superintendent of Great Sand Dunes National Monument, said that “on the ground, it makes no difference whether there’s an in-stream flow right or not. The water would flow across the Dunes area in its natural channels in either case.”

So this is likely a struggle to set, or to avoid setting, a precedent, about federal in-stream flow rights.

Chris Canaly, head of Citizens for San Luis Valley Water, is optimistic. “I see this as a temporary snag. I see it as going through because everyone wants it so much.” She noted that the 1993 Colorado Wilderness Bill was held up for similar reasons, but they were resolved.

Greg Goasar, Valley rancher and environmentalist, isn’t so sanguine. “It’s my feeling that if they can’t take it the way it’s written, then everybody wants it stalled.”