In the 2 years since a change of in-stream flow (ISF) policies threatened the viability of O’Haver Lake, discussions between officials with the Upper Arkansas Water Conservancy District and the Colorado Water Conservation Board have failed to yield a long-term solution.

At the recent Upper Ark board meeting, attorney Kendall Burgemeister said he has been “trying to work with the CWCB on the Grays Creek-O’Haver ISF issue” and expressed frustration with the lack of progress.

The conservancy district stores water in O’Haver Lake by diverting that water from nearby Grays Creek. Diverting water requires an exchange – a release of water from another source in exchange for diverting water from the creek.

By law, the CWCB holds all ISF water rights in Colorado, and as previously reported in The Mountain Mail (Dec. 16, 2014; Feb. 19, 2015), the agency began placing calls on its ISF rights a little more than 2 years ago.

The CWCB’s ISF right for Grays Creek is 4 cubic feet per second, but Upper Ark staff have documented average flows of 1.5-1.9 cfs. Given the disparity, the CWCB’s ISF call on Grays Creek prevents the Upper Ark district from exchanging water upstream to O’Haver Lake.

Terry Scanga, general manager of the Upper Ark district, previously said the old policy allowed exchanges as long as there were no calling water rights between O’Haver Lake and the point of release for the exchange water.

Since this practice did not injure any water rights, Scanga said he believes the old policy was correct, based on Colorado Revised Statute 37-92-102 (3), which established ISFs as a beneficial use of water in 1973.

The statute states that any ISF appropriation is subordinate to pre-existing “uses or exchanges of water ... whether or not previously confirmed by court order or decree.”

Since O’Haver Lake has been used to store water since 1949, Scanga said, the CWCB’s ISF water right, established in 1977, should be subordinate to the conservancy district’s ability to exchange water into the lake.

But at the December board meeting, Burgemeister reported that CWCB staff have so far failed to formally acknowledge the pre-existing use of O’Haver for storing irrigation water due to a lack of data.

During discussion of Burgemeister’s report, Ben Lara, recreation program manager with the U.S. Forest Service Salida Ranger District, commented that the environmental impact statement currently being drafted will “spell out the effects of draining the reservoir,” which is on USFS land.

He also indicated that feedback for the environmental impact statement from Colorado Parks and Wildlife officials acknowledges the importance of the O’Haver Lake fishery.

Greg Policky, Colorado Parks and Wildlife aquatic biologist, did not attend the meeting but later confirmed the importance of the O’Haver fishery, stating, “We feel a cooperative agreement can be reached that reasonably protects the natural environment of Grays Creek while maintaining the recreational fishery in O’Haver Lake.”

Policky’s statement echoed Scanga’s recommendation that the Upper Ark board call for a meeting of all relevant agencies – CWCB, CPW, USFS and Upper Ark district – to attempt to negotiate a long-term agreement acceptable to all parties.

Board members approved Scanga’s recommendation but acknowledged that the district could be compelled to drain the reservoir if the situation is not resolved.

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