Three years after a committee began exploring ways to protect the Crystal River, one method has been implemented and a second is in process. But a third tool — a federal Wild and Scenic designation — remains contentious with unanswered questions.
Members of the Crystal River Wild and Scenic and Other Alternatives Feasibility Steering Committee met in Marble on Nov. 10 and presented progress reports on the three methods and plotted the next steps for protecting one of the last rivers in the state free of dams or trans-basin diversions. In March 2024, after two community summits that drew over 100 people, the group split into three subcommittees, each dedicated to investigating a different strategy for protecting the river: through an intergovernmental agreement; an instream-flow water right and a federal designation under the Wild & Scenic Rivers Act.
In April, five local governments — Pitkin County, Gunnison County, the town of Marble, the Colorado River Water Conservation District and West Divide Water Conservancy District — signed an intergovernmental agreement that pledged to not support any new reservoirs on the mainstem of the Crystal and to oppose any trans-basin diversions that would take water out of the Crystal River basin.
“It’s a durable commitment that I think the five government agencies have made, and it’s something that I hope we can celebrate as a victory,” said Liz Smith, Gunnison County Commissioner and steering committee co-chair. “This is something that we were able to get across the finish line, and it’s meaningful.”
A second subcommittee presented on the progress of securing an instream-flow water right through the Colorado Water Conservation Board. This type of water right is designed to keep water in rivers and can be held only by the state. Most set a minimum flow needed to maintain a healthy ecosystem, but the Crystal group is seeking something slightly different: a water right that would claim a certain amount of peak spring runoff for the benefit of the environment.
The idea is that if these peak spring flows are already spoken for with this water right, they can’t be claimed by future reservoir projects, which also tend to capture water at the height of spring runoff and store it for use later in the year.
Researchers are studying the riparian vegetation, such as cottonwood and blue spruce, on the banks of the Crystal to determine the levels of high flows needed to support the ecosystem.
“The real purpose here is to formulate a scientific basis for a potential recommendation for instream flow on the Crystal River,” said Caleb Foy, a subcommittee member and water resources engineer with the River District.
Securing an instream-flow water right is a multiyear process that would need approval from the CWCB and a sign-off in water court before it can go into effect.
Wild and Scenic subcommittee
The most significant discussion of the evening was about the work of the Wild and Scenic subcommittee and the potential for federal protections. The U.S. Forest Service first determined in the 1980s that the Crystal River was eligible for designation under the Wild & Scenic Rivers Act, which seeks to preserve rivers that have outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic and cultural values in a free-flowing condition.
There are three categories under a designation: wild, scenic and recreational, which can have varying existing levels of development along the waterway. The Crystal could include all three types of designation: wild in the upper reaches of the river’s wilderness headwaters, scenic in the middle stretches and recreational from the town of Marble to the Sweet Jessup Canal headgate.
Each river with a Wild and Scenic designation has unique legislation written for it that can be customized to address local stakeholders’ values and concerns. A group of local residents have for years supported a designation, which would require Congress to pass a bill, with the support of Colorado’s lawmakers.
But the plan has also been met with resistance. Although everyone agrees the Crystal is worthy of protection, some are highly skeptical of management by the perennial foe of water users in the American West: the federal government.
Reluctant to lock up water that could be developed for future use, the state of Colorado also opposes designating rivers as Wild and Scenic. State officials have instead created a fund to develop alternatives to a federal designation that still offer some river protections.
In September, the Wild and Scenic subcommittee released a 59-page report, prepared by Keystone Policy Center, outlining how a federal designation could be tailored to protect the river. The report is meant to be used as a decision-making tool and doesn’t come with concrete recommendations. It’s still unclear whether existing water rights, agriculture, augmentation and local infrastructure can be protected with sufficient certainty, whether private-property concerns can be addressed and whether the U.S. Forest Service, local governments, landowners and partners would have enough capacity to implement a designation in a timely and trusted way.
“These issues are likely to determine whether Wild and Scenic designation is viewed as a workable community protection tool or as a source of unacceptable uncertainty,” the report reads.
And uncertainties around the crux of the Wild & Scenic Rivers Act, Section 7, have repeatedly come back to haunt proponents of a designation. Section 7 is the “teeth” of the act, and prohibits the Federal Energy Regulatory Commission from licensing the construction of any dam, water conduit, reservoir, powerhouse, transmission line or other project on a designated river, and no federal agencies can assist in projects that would have a direct and adverse effect on the outstandingly remarkable values of the river. The act says that projects could take place upstream of, downstream of or on a tributary of a designated reach, but only if they don’t unreasonably diminish the ORVs.
Attorney Glenn Porzak represents Crystal River Ranch, which is the largest diverter on the river, and he is an opponent of a Wild and Scenic designation. The ranch’s Sweet Jessup Canal is the farthest upstream of the big agricultural diversions on the lower river, with the ability to take 75 cubic feet per second.
In an August memo to steering committee members, Porzak listed what he said were misrepresentations and inaccuracies in the report. He said the discussion of Section 7 understates and does not give an accurate representation of its effects. The Crystal is only eligible for a Wild and Scenic designation upstream of the Sweet Jessup Canal, but Porzak’s interpretation of the act is that federal authority could extend to water rights upstream of, adjacent to, tributary to and downstream of the designated segment.
“Section 7 is so broad that it’s a nonstarter,” Porzak said. “We learned that Section 7 would establish federal control over land-use decisions and water development within the Wild and Scenic corridor of the Crystal River… . Where I started out was, I just didn’t want it anywhere near the Sweet Jessup Canal, and then as time went on, I said no way because it can affect anything downstream.”
Porzak provided a position statement saying he and others are opposed to and will seek to prevent a Wild and Scenic designation.
“Given the foregoing, the undersigned believe that an intergovernmental agreement between Gunnison and Pitkin Counties, and a state peaking instream flow can accomplish the desired effect of preventing any new large water developments and diversions without establishing unwanted federal control over local water rights and land use decision-making,” the position statement reads.
Michael Gorman, campaign director at Carbondale-based environmental conservation group Wilderness Workshop and co-leader of the Wild and Scenic subcommittee, said the report addresses Porzak’s concerns in numerous places. He said private property, agriculture, irrigation and working landscapes are values that the group wants to preserve, and that could be worked into a proposal.
Gorman said the point of the process was to move beyond a battle of the petitions.
“I think we’ve got the info and some tools that could address the issues that have been brought up,” Gorman said. “I think it was a really gratifying experience to be in the room with this whole group who agreed on what we want for the future of the river. We have different opinions on how the mechanics of that may work, but at the end of the day, we all share that value for the Crystal.”
Next steps
Now that two of the three subcommittees have completed the work they set out to do — with the instream-flow group still working toward obtaining a water right — it is not immediately clear exactly what the next steps are or whether the group will pursue a federal designation.
Steering committee member Jamie Vogt expressed frustration at the slow pace of progress over the past few years and suggested drafting Wild and Scenic legislation so that they could critique and get feedback on a specific proposal.
“There have been some great steps that have been taken, and I’m not dismissing that, but the big elephant in the room is Wild and Scenic,” Vogt said. “We don’t have anything that is actually a specific proposal for the Crystal River that we can really talk about the nuts and bolts on. I just fear that in six months, a year, two years from now, we’re going to be right back where we are tonight.”
Some cautioned that it is still too early to draft legislation — which would probably need to be done with input from the larger community — but a show of hands pointed to support for taking a list of unresolved questions and issues to the Congressional Research Service. CRS is a nonpartisan, nonbinding, confidential research service for legislators that can provide in-depth analysis of issues and policies. It could also provide some clarity on remaining Section 7 issues.
“I don’t know that the report we received from the end of the subcommittee work has exhausted or satisfied people’s questions there,” Smith said. “I do think that we can pose very specifically the problems that this group has become stuck on to the research service and see what they come back with.”
Next steps could also include a survey of water rights holders on the Crystal.
“The question of the evening is: Where do we go from here?” said Zane Kessler, steering committee co-chair and director of government relations with the River District. “There’s certainly no harm in asking our delegation to submit some questions to the CRS and requesting a formal response from them.”
