Headwaters Spring 2005: Endangered Species

C O L O R A D O F O U N D A T I O N F O R W A T E R E D U C A T I O N | S P R I N G 2 0 0 5

Colorado Foundation for Water Education

1580 Logan St., Suite 410 • Denver, CO 80203303-377-4433 • www.cfwe.org

MISSION STATEMENT

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. BrownExecutive Director

Jeannine TompkinsAdministrative Assistant

OFFICERS

PresidentDiane Hoppe

State Representative

1st Vice PresidentJustice Gregory J. Hobbs, Jr.

Colorado Supreme Court

2nd Vice PresidentBecky Brooks

Colorado Water Congress

SecretaryWendy Hanophy

Colorado Division of Wildlife

Assistant SecretaryLynn Herkenhoff

Southwestern Water Conservation District

TreasurerTom Long,

Summit County Commissioner

Assistant TreasurerMatt Cook

Coors Brewing

At LargeTaylor Hawes

Colorado River Water Conservation District

Rod KuharichColorado Water Conservation Board

Lori OzzelloNorthern Colorado Water Conservancy District

TrusteesSteve Acquafresca, Mesa Land Trust

Rita Crumpton, Orchard Mesa Irrigation District

Kathleen Curry, State Representative

Jim Isgar, State Senator

Ken Lykens, Denver Water

Frank McNulty, Colorado Dept. of Natural Resources

Tom Pointon, Agriculture

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

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

ACKNOWLEDGEMENTS

The Colorado Foundation for Water Education thanks all the people and organizations that provided review, comment and assistance in the development of this issue.

LETTER FROM EDITOR ...........................................................1

IN THE NEWS ......................................................................2

CFWE HIGHLIGHTS .............................................................3

FOCUS ON…THE ENDANGERED SPECIES ACT .............................4

ESA: SAFETY NET OR SHAMBLES? ...........................................6

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

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

ENDANGERED FISH RECOVERY PROGRAM & SAN JUAN RIVER

BASIN RECOVERY IMPLEMENTATION PROGRAM ..........................16

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

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

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �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 fi sh.

LETTER FROM EDITOR

IN THE NEWS

CFWE HIGHLIGHTS

FOCUS ON…THE ENDANGERED SPECI

ESA: SAFETY NET OR SHAMBLES?

SPECIES RECOVERY STARTS AT HOME

ENDANGERED FISH RECOVERY PROGRAM & SAN JUAN RIVER

BASIN RECOVERY IMPLEMENTATION PROGRAM

LEGAL BRIEF: WATER RIGHTS FOR RECREATION

ORDER FORM

Enlisting landowners to help conserve species, p. 13

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

Focus on the ESA, p. 4

Watermarks

Editor and Executive Director

HEADWATERS – SPRING 2005 1

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.

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.

2 COLORADO FOUNDATION FOR WATER EDUCATION

BOULDER—A tiny mollusk that has crip-pled 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, poten-tially 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 disrupt-ing 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 inver-tebrates, measuring no more than five millimeters in length, can even pass unscathed through the digestive tracts of fish. Because they can reproduce asexu-ally, a single New Zealand mudsnail can colonize a new area.

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

Wildlife. “They can cause a lot of dam-age. These snails are highly adaptable and reproduce in such great numbers that they can actually lock up the avail-able 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 pre-cautions 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.

New Zealand Invader May Wreak Havoc on Colorado Streams

‘Smarter Growth’ ConferenceApril 18-20, Denver

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 per-tinent 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, transporta-tion, 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.

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 solu-tions 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 dead-line is April 6, 2005. CFWE members receive a $15 registration discount. With additional questions, contact the Foundation at (303) 377-4433.

2005 AWRA Annual SymposiumApril 15, Golden

GREELEY—Farmers and ranchers rely-ing 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

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 complet-ing 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 pro-tect senior water rights, Central has been forced to go out and find additional water resources for well-users to pump.

Weld County Groundwater Users Have Dry Outlook


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.

REGISTRATION

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

Late Registration – After June 3

$625 single or double occupancy

For registration forms, call the CFWE offices at (303)377-4433 or download a print-able form at www.cfwe.org

WHO ATTENDS?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!

Register for the Yampa, White Register for the Yampa, White River Tour June 22-24, 2005

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.

REGISTRATION

activities and background materials.

able form at www.cfwe.org

WHO ATTENDS?

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!

Tour Sites and Topics(subject to change)

DAY ONE: JUNE 22River restoration on the Lower

Elk RiverLunch at a local ranch, agricultural

flood irrigation Steamboat Springs Whitewater ParkStagecoach Reservoir hydroelectric

facility

DAY TWO: JUNE 23Globally 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: JUNE 24Oil and gas issues in the Piceance

Basin: tour a drill rigKenney Reservoir and water quality

issues in the White RiverVisit Dinosaur National MonumentGreen River/Flaming Gorge

Reservoir operations

For a detailed itinerary see the Foundation’s Web site at www.cfwe.org

Larry

Pie

rce/

CTO

(2)

Fly fi shing on the Yampa River.

Looking towards the Green River from Dinosaur National Monument.

FOCU

S ON

…


More than three decades ago, with the nation’s cher-ished 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 “threat-ened” 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 leg-islation 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 spe-cies, 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 pri-vate 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.

The Endangered Species ActBy Kevin Darst


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 congress-men 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.

WHAT THE ACT DOESThe act, which has been reauthorized seven times and occa-

sionally 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 declin-ing 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 pro-pose for listing. There are currently 286 plant and animal candidate species.

The ESA’s stated pur-pose is to conserve threat-ened or endangered spe-cies and provide a plan for

their recovery—using all methods necessary to bring these spe-cies 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 threat-ened or endangered.

THE ESA IN COLORADOColorado harbors 16 federally listed endangered species, includ-

ing 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 reintro-duced 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.

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 spe-cies 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 provid-ers against the USFWS. Thousands of dollars were 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 recommenda-tion and six disagreed. ESA advocates were dismayed and criti-cized 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 incen-tives 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 politi-

cal 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 strong-ly supports endangered species protection and the act.” ❑

meadow jumping mouse has been one of the state’s more contested listings, pitting residential and commercial developers, cities and water provid-ers against the USFWS. Thousands of dollars were

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 pro-pose for listing. There are currently 286 plant and animal candidate species.

pose is to conserve threat-

The Preble’s meadow jumping mouse will likely soon be taken off the threatened list.

Anne

Rug

gles

Cynt

hia

Hunt

er

Endangered razorback suckers were once widespread in the Colorado River system.


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 prog-

ress has been more in the nature of managing or controlling land use rather than actually recovering spe-cies. 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, communi-ties, 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-

Experts on theEndangered Species Act

Share their Views

Biological OpinionsIf 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 proj-ect may adversely affect a listed species or their habitat, they prepare a “biologi-cal opinion.”

The biological opinion may recom-mend “reasonable and prudent alterna-tives” to the proposed major construc-tion project or action to avoid jeopar-dizing or adversely modifying habitat critical to survival of the species.

Russell George,Executive Director of the Department of Natural

Resources and former head of the Colorado Division of Wildlife

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

Dr. Barry Noon, Professor of Wildlife Ecology, Department of

Fishery and Wildlife Biology, Colorado State University

February 1, 2005 – CFWE Offices, Denver

Karla Brown, Moderator | Photographs by Brian Gadbery

ESASAFETY NETor Shambles?


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 develop-ment 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

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 noth-ing 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 neces-sarily those of the Department of the Interior. And in my opinion the act isn’t broken.

But I think there are a lot prob-lems 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 habi-tat. 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.

Generally each year there are about 1,300 formal Section Seven consultations. That means that some-body 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 accom-modation 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

appears there may be contrary infor-mation. 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

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 endan-gered 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 ran-

Tom Pitts, Principal with Water Consult:

Engineering and Planning Consultants

Carl Stogsdil, Lincoln County Rancher and Division of Wildlife

Landowner of the Year 2005

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

Office of the Regional Solicitor

ESAor Shambles?


domly-selected recovery plans. This review involved, I think, 15 univer-sities around the country. What we found is that deficiencies in the data were strongly correlated to the time when the recovery plans were devel-oped. What we saw was an extremely strong trend towards an increasing empirical foundation and data cred-ibility 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 threat-ened 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 fundamen-tal 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 spe-cies 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 hun-dreds of species out there on the list and there’s nothing being done—noth-ing significant for recovery.

And also as Margot stated—hope-fully—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 pri-orities are set by lawsuits. And when judges are telling them what the pri-orities are for listing, as far out as you can see, there is no room for additional

listing because the courts have dic-tated 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-

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

the heck out of us because of the [listing of the] Preble’s meadow jump-ing 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?

Noon: Well, I can comment on a report that I pulled off of the Web just recently done by an economist/politi-cal 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 over-all 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 fin-ished 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 lit-erature, is that at the scale of the indi-vidual states, environmental protec-tion 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-

Brown:

Noon:

“”

“I consider the

Endangered Species

Act the most noble

of the Federal

environmental statutes.

There’s nothing like it”

—Dan Luecke


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 jurisdic-tional requirements imposed by the federal Endangered Species Act.

Those numbers are available and there are others. There’s ample jus-tification for the belief that’s at least intuitive among all of us—that impo-sition 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 prob-lem. 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 agen-cies, have bought into that solution because it is better than any of the alternatives. And the alternatives are legal chaos, and regulatory and eco-nomic uncertainty—and that’s a fact.

If we didn’t have that [recov-ery] program, we would have pit-ted our interstate compacts against the Endangered Species Act. And the economic consequences of uncertain-ty—just whether or not one could develop the state’s compact obliga-tions—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 con-tributions 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-

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

critical habitat you’re supposed to take economics into account. However, U.S. Fish and Wildlife is prohibited from taking it into account for list-ings. 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 accommoda-tions 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 individ-ual. 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 ‘eco-nomically 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 nar-row 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 HabitatFor endangered and threatened

species, this term means specific areas within the larger geographic area occupied by a species, deter-mined to be essential to the persis-tence of the species in the long-term (more than 50 years) or requiring special management considerations or protection.

Noon:“”

“…105 out of 1,200 species got 90 percent of the fund-

ing. So we have hundreds of

species out there on the list

and there’s nothing being

done—nothing signifi cant

for recovery.”

—Tom Pitts

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 conserva-tion, 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 legisla-tures, 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 consider-ation 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 proba-bly would not be in our priority. That’s

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

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 spe-cific studies done in Colorado—oth-ers might. But I’m very well aware of what’s going on in my own coun-ty—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 pro-tection 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 mil-lion, 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 pur-chases, 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 conserva-tion—primarily to match increasing federal funding.

Right now, we’re trying to com-plete 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 spe-cies issues there—whooping cranes, pal-lid 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

George:

“”

“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 benefi cial for the species and for the river too.“

—Carl Stogsdil


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 landown-er’s perspective: since as you said, we [private landowners] have 85 percent of the listed species on our prop-erty—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 pro-grams, 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 land-owners 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 mon-ies 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 [land-based 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 fur-ther—have some sort of direct finan-cial transfer.

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

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

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 comfort-able 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 specif-ics. I would like to see us continue down the path that I’m seeing increas-ingly now with the Fish and Wildlife Service administratively delegating more management to the states—let-ting state agencies and their local pri-vate 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

George:

“”

“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


No Surprises PolicyPolicy 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 land-owner pay more or provide additional land, for example, even if the needs of species change over time.

Safe Harbors AgreementsDeveloped in 1995, Safe Harbors

Agreements are voluntary contractual arrangements between landowners and the federal government. They involve determining baseline envi-ronmental conditions and agreed-upon habitat management activi-ties. 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 activi-ties are designed to provide benefits to the endangered species despite any potential “take” that may occur.

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 cur-rent 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 stan-dards 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 predica-ment 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 eval-uation of the quality of the science. And we have this 2005 report that was released last week about the qual-ity 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 direct-ly 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

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,

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 habi-tat 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 get-ting 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 land-owners. We need to learn more about the symbiotic relationships that rare spe-cies 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 look-ing 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 rec-ognize 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 pro-tect any species. Whatever is done to amend the act I hope that feature remains in place. ❑

“”

“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


At 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 devel-opment 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 dif-ficult 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 organiza-tions 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 num-ber 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 con-servation 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 subcom-mittee, 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 pres-sure from development.” ❑

Species Recovery Starts at HomeState-landowner partnerships strive to keep species from threatened or endangered status

By Kevin Darst | Photograph by Jim Richardson



After more than a decade of frustrating and yet persis-tent 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 desig-nated as critical habitat for the endangered pallid sturgeon.

The need for a cooperative, compre-hensive approach to developing a federal-ly-mandated recovery plan became appar-ent 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 exist-ing 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 basin-wide approach was needed to limit further conflict and meet the needs of both imper-iled 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 recov-ery program. This 10-member com-mittee 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 13-year term of this agreement.

At this time, the partnership’s pro-posal is to incrementally increase flows in the Central Platte River by 130,000 to 150,000 acre-feet annually. This is a sub-stantial 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 pro-tect, restore and maintain 10,000 acres of habitat in central Nebraska.

Dan Luecke, a Boulder-based consultant to the National Wildlife Federation, represents the environmen-tal community on the governance com-mittee. 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.”

Rising Waters

States Agree to Increase Platte River Flowsfor Struggling Fish and Birds

By Dan MacArthur | Photographs by Jim Richardson

States Agree to Increase Platte River Flows

Sandhill cranes, who are not endangered, take fl ight 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.

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 cooper-ate 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 acre-feet in Lake McConaughy would be ear-marked as an “environmental account” to store water dedicated to recovery of the species. Colorado has agreed to imple-ment its Tamarack Phase One Plan. This project takes water from the river during times when junior water rights are avail-able—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—primar-ily 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 mea-sures such as conservation (e.g., canal

lining) and additional managed ground-water 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 chan-nels, 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 repre-sents 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 mil-lion to more than $175 million today. This would be split evenly between the states and the federal government, with Colorado and Nebraska each respon-sible for 40 percent of the states’ cost and Wyoming paying 20 percent, over a period of 30 years.

However, there is concern that the

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 pre-dict 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. ❑



In 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’ sur-vival, 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.

By Kevin Darst | Photographs by Jim Richardson

San Juan River Basin Recovery Implementation Program

San Juan River Basin Recovery San Juan River Basin Recovery San Juan River Basin Recovery &Upper Colorado RiverEndangered Fish Recovery Program

&&

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

HISTORY

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 continu-ing to develop water supplies from the Colorado River. This endangered spe-cies recovery program, which in 2001 was extended through September 2013, focuses on habitat development and man-agement of the humpback chub, bonytail chub, Colorado pikeminnow and razor-back 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 cre-ated 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 rev-enues, 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.

ACCOMPLISHMENTS AND STRUGGLES

The U.S. Fish and Wildlife Service in 2002 approved a set of milestones endan-gered 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, bony-tail 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.

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.

By Kevin Darst | Photographs by Jim Richardson

This summer marks the fifth year Colorado’s Native Aquatic Species Restoration Facility has been breeding and releas-

ing threatened and endangered fish into the state’s rivers and streams. Opened in 2000, this facility run by the Colorado Division of Wildlife aims to recover native fish and other aquatic species, including toads, snails and mollusks, to self-sustain-ing populations in the wild.

The facility just outside Alamosa raises 10 fish species and one amphibian—the boreal toad—listed by the state as threatened or endangered. The six-per-son staff also works closely with the U.S. Fish and Wildlife Service’s Upper Colorado River Endangered Fish Recovery Program to raise two federally-listed species—the Colorado pikeminnow and bonytail chub.

The Division of Wildlife, Colorado Water Conservation Board and Great Outdoors Colorado (GOCO) funded construction of the

$6 million facility, the only one of its kind in the country. While traditional hatcheries require raceways (large circulating pools) and cool water to raise trout and other game species, this operation focuses on creating the warm and often silty water conditions common to many Colorado rivers.

Manager Dave Schnoor notes that so far his staff has successfully bred all but one of the species under their charge. The plains minnow, a short-lived fish that requires muddy flood waters to spawn, has been particularly difficult. “The chal-

lenge is to figure out the trigger mechanism that gets them to lay eggs, says Schnoor.”

While continuing ecosystem stresses ensure that Schnoor won’t work himself out of a job anytime soon, he says the facility’s success raising endangered fish also helps ensure that Coloradans won’t be asked to drastically change how they use and consume water. ❑

Alamosa Hatchery Specializes in Rare Species


Cynt

hia

Hunt

er

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

Colorado’s boreal toads are a federal candidate species and are listed as endangered by the state of Colorado.


✔ Two hatcheries in Colorado and two in 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 rais-ing tens of thousands more fish for future stocking.

✔ 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 effi-cient 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.

✔ A 2003 agreement ensured that Ruedi Reservoir would release 10,825 acre-feet annually for a 15-mile stretch of the Colorado River through 2012.

✔ Since 1996, a fish ladder at the Redlands 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 non-native species, including northern pike, channel catfish and small-mouth bass. While non-native fish remain a problem throughout the

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

WHAT’S NEXT?In the San Juan River Basin, pro-

gram managers are studying past stock-ing 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 pop-ulations. 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 unpredict-ability 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.

The Colorado Supreme Court just released a ruling on a case critical to decid-ing how much water will be allowed to flow through Colorado’s whitewater parks, and how these water rights may affect future upstream water development (e.g, con-struction of reservoirs).

Some praise the decision as a “complete win” for recreation, while others are reas-sured that it reinforced the requirement for whitewater courses to only get the minimum amount of water necessary for a reasonable recreational experience.

In the late 1990s, as the popularity of whitewater parks increased, local cities and water districts began applying for water rights to support river flows through their parks. In 2001, the state passed legislation defining and setting boundaries for these water rights. They called them “recreational in-channel diversions (RICD).”

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 (the state’s water-policy making agency) is required to review and make recommendations to the regional water courts regarding all applications for these water rights.

After the 2001 law passed, applications for recreational water rights for cities around the state—Gunnison, Longmont, Steamboat, Pueblo—began filing into water court.

The first case to be decided under the new law was an application by the City of Gunnison to secure rights for a kayak course in the Gunnison River. The city requested a range of flows from May through September, with peak flows of 1,500 cubic feet per second (cfs) in June. These variable flows totaled more than 157,000 acre-feet annu-ally (more water than is contained in Horsetooth Reservoir near Fort Collins, for example). These flows also constituted more than 41 percent of the Gunnison River’s available stream flow each year.

By contrast, the CWCB recommended that Gunnison be allowed only steady flows of 250 cfs from May through September. When the water court approved Gunnison’s flows as requested, opposers including the State Engineer’s Office, CWCB and others, instantly appealed the case.

In the Colorado Supreme Court’s decision released in mid-March, the court found that both the CWCB and the water court erred in this case. According to the court’s opinion, the CWCB failed to evaluate the flows requested in Gunnison’s application. Instead, the CWCB “literally ignored

the application before it in favor of opining generally on its perception of the appropri-ate stream flow and more reasonable recre-ational experience.”

The court’s opinion also went on to further interpret the language of the 2001 law, stating that it does not give the CWCB authority “to dictate a flow rate or recreation experience for RICD water rights.” The court stated the CWCB does have authority to evaluate the application against five major concerns (see CWCB Review, p.20). If the CWCB finds that the application for exam-ple, does not promote maximum utilization of the state’s waters or impairs fulfillment of

Colorado’s interstate water agreements, it can recommend the water court deny the application.

Further, the court found that the CWCB did not sup-ply the water court with sufficient analysis of the Gunnison application—considering the five major concerns cited in the 2001 RICD law—therefore the court wasn’t able to do a complete job of evaluating the application, as required.

Ambiguous language in the 2001 legislation did not aid matters. Much debate revolves around what constitutes the “minimum stream flow” for a “reasonable recreational expe-rience.” Ask whitewater course designer Gary Lacy what is reasonable, and he is quick to respond that it depends on the purpose of the park itself.

“If the community wants to create a world-class white-water park for freestyle boating, the purpose is big dynamic water features. Generally that requires significantly more water than what the state considers ‘reasonable.’ But if they just want something you can float a boat down, with no attraction for visitors, then that is an entirely different proposition.”

The court also agreed that a “reasonable recreational experience in and on the water” involves an undetermined amount of water that “will vary from application to applica-tion depending on the stream involved, and the availabil-ity of the water within the basin.” Deciding the minimum amount necessary will involve hearing conflicting expert testimony, including CWCB recommendations.

So it’s back to the drawing board. The CWCB must provide another set of recommendations for the Gunnison application, and the case will be sent back to water court for further interpretation. The size of the waves in future Colorado whitewater parks has not yet been decided. ❑

L E G A L B R I E FWater Rights for Recreation

the application before it in favor of opining generally on its perception of the appropri-ate stream flow and more reasonable recre-ational experience.”

further interpret the language of the 2001 law, stating that it does not give the CWCB authority “to dictate a flow rate or recreation experience for RICD water rights.” The court stated the CWCB does have authority to evaluate the application against five major concerns (see CWCB Review, p.20). If the CWCB finds that the application for exam-ple, does not promote maximum utilization of the state’s waters or impairs fulfillment of

Some praise the decision

as a “complete win” for

recreation, while others are

reassured that it

reinforced the requirement

for whitewater courses

to only get the minimum

amount of water neces-

sary for a reasonable

recreational experience.

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



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 con-sider 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.

CWCB Review

L E G A L B R I E FWater Rights for Recreation

INSTREAM FLOW WATER RIGHTS allow water to stay in the stream channel “to preserve or improve the natural environ-ment 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 RIGHTSallow 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.

Instream Water Rights v. Recreational Water Rights

2001 State Legislature passes new law recognizing

“recreational in-channel diversions”Pending

ApplicationsTown River Water Right Requested*

(cubic feet per second, cfs)

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

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.


Contact name:_____________________________________Company (if applicable):_________________________________________Address:_____________________________________________________________________________________________________Phone or email (in case there is a problem or delay fi lling your order):_____________________________________________________

Membership orders: How would you like this membership listed in our publications and annual membership reports?__ Under my name __ Under my company’s name __ Anonymous

__ Check enclosed __ Visa __ Mastercard __ Discover __ AmexCard number: ______________________________________________________ Expires: ____________________________________Name on card: ______________________________________________________ Signature: __________________________________

Item Quantity Member Price Price Total

Citizen’s Guide to Colorado Water Law: 2004 revised edition This booklet explores the basics of Colorado water law, how it has developed, and how it is applied today. Designed to be easy-to-read, yet comprehensive enough to serve as a valuable reference tool. Updated for 2004 with important changes based on new legislation in 2003. 33 pages, full color.

$7.20 each;$5.40 each if ordering 10

or more

$8 each;$6 each if

ordering 10 ormore

$Citizen’s Guide to Water Quality Protection This handy desk reference is designed for those who need to know more about Colorado’s complex regulatory system for protecting, maintaining, and restoring water quality. Wondering if your local creek is safe for fi shing or swimming? This guide can help you fi nd the answers. 33 pages, full color.

Citizen’s Guide to Colorado Water Conservation The latest in the Citizen’s Guide series looks at the current water conservation technologies, incentive programs, regulations and policies promoting effi cient water use in Colorado. Not a “how-to” book, but a reference for those who need a balanced overview of the opportunities and challenges for water conservation in Colorado today. 33 pages, full color.

Headwaters Magazine Our quarterly magazine features interviews, legal updates, and in-depth articles on fundamental water resource topics. Available by subscription or free with your membership, Headwa-ters keeps you up-to-date and informed about water resource concerns throughout the state.

FREE $25 annually $

Colorado: The Headwaters State Poster Recently updated, this colorful poster provides an overview of the major lakes, reservoirs and rivers in Colorado and describes how humans and the environment rely on these variable resources. 24”h x 36”w.

FREE (plus shipping)

Water History Poster An archeological and historical timeline of Colorado’s water resources and their development from circa 14,000 B.C. to the present. 36”h x 24”w. FREE (plus shipping)

PLEASE ADD THE FOLLOWING SHIPPING CHARGES TO YOUR PAYMENT:CITIZEN’S GUIDES 1-6 guides, $2. 7-20 guides, $5.50. 21-35 guides, $9.00. 36-60 guides, $10.50. More than 60 guides, $12.50.

POSTERS 1-5 posters = $3.50. If ordering more than 5 posters please call us on 303-377-4433 so we can determine accurate shipping costs.$

SUBTOTAL $

I / we would like to become a member at the ____________________________________ level as described above. $

TOTAL $

Headwaters member - $2,000 or more: Up to 10 FREE annual subscriptions to Headwaters maga-zine; FREE set of Citizen’s Guides and posters; special recognition in CFWE events & publications

Pioneer member - $1,000 or more: Up to 7 FREE annual subscriptions to Headwaters magazine; FREE set of Citizen’s Guides and posters

Sustaining member - $500: Up to 5 FREE annual subscriptions to Headwaters magazine

Associate member - $250: Up to 3 FREE annual subscriptions to Headwaters magazine

Watershed member - $100: FREE annual subscription to Headwaters magazine

Individual member - $50: FREE annual subscription to Headwaters magazine

Student member (current students only) - $25: FREE annual subscription to Headwaters magazine; 50% off all tours and events

ORDER FORM / MEMBERSHIPS

Mail with payment to CFWE, 1580 Logan Street, Suite 410, Denver, CO 80203, fax (303) 377-4360, or order online at www.cfwe.org

Support the Foundation’s efforts to provide balanced and accurate information on water resource issues. All members receive regular updates and notices on new Foundation products and events, 10% discount on all publications and event registrations, and FREE subscriptions to the quarterly Headwaters magazine.

Your membership contribution is tax-deductible, in accordance with state and federal laws.

Total

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

��

Southwestern

� � � � � ��

San Juan

& Dolores

River Basins

Member

� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

Southwestern

��

San Juan

& Dolores

River Basins

Sandhill cranes flock 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.

Headwaters Spring 2005: Endangered Species

Documents

Transcript of Headwaters Spring 2005: Endangered Species