Questions over water rights

County commission wary of BLM's intentions with Yellow Jacket property

The Montezuma County commissioners sparred with public lands officials on Tuesday over issues of water rights, grazing permits and federal acquisitions of private property.

At issue were seven parcels - totalling 4,537 acres - in Yellow Jacket Canyon, owned for decades by the Wallace family. They were sold at auction in 2009 and scooped up for $3.3 million by the Bureau of Land Management. The Wallace properties had been inholdings, encircled by public land - specifically, by Canyon of the Ancients National Monument.

With the purchase, the BLM acquired formal title to the water rights attached to two of the parcels. Original rights established by Wesley Wallace in 2005 authorized up to 5.25 cubic feet per second from Yellow Jacket Creek for irrigation, domestic use, livestock or fire suppression, although they were never exercised and remain "conditional."

Roy Smith, a BLM water rights specialist, said he didn't expect the agency's needs to go much beyond one acre foot annually because it has no intention to build a subdivision or irrigate crop fields.

More realistic uses, he added, could be eradicating invasive weeds and reseeding with native plants, pumping water to cattle troughs away from the stream and creating a small reservoir for reactive fire suppression.

This particular water right is superseded by older rights; as such the properties would have lower priority during dry years. However, commissioner Steve Chappell, who lives nearby, said because Yellow Jacket Creek is fed mostly by irrigation return water, it isn't as dependent on snowmelt runoff.

"It hasn't been dry (during growing season) in 68 years," he said. "As long as McPhee and MVI exist, water will be there."

The conversation ran the gamut from esoteric details of water rights law to broader disgruntlement over the large footprint of federal lands in Montezuma County.

James Dietrich, the county's community services director, said about 70 percent of Montezuma County is either public or owned by the Ute Mountain Ute tribe. The figure is dated - it comes from the comprehensive plan drafted in 1996 - but Dietrich said it is still useful as a point of reference. If anything, public land acreage has crept upward since.

Commissioner Keenan Ertel grew especially agitated over this point. Gesturing on a map, he referenced what he calls the "banana" - a diagonal, northwest-to-southeast swath of private land surrounded on each side by the BLM/Canyon of the Ancients, U.S. Forest Service, Mesa Verde National Park and Ute Mountain Ute reservation.

"It's all we've got left," he said.

As public lands are not taxable, the commissioners voiced concerns about lost revenue.

County Assessor Mark Vanderpool said the Wallace holdings, classified as dry grazing land, were most likely taxed at 17 cents per acre, equaling $770 per year altogether.

"Any lost tax revenue, when property goes from taxable to exempt status, is minimal. Quite frankly it is probably offset by (payment in lieu of tax) money. So I see it a bit differently (than the commissioners)," he said Wednesday.

Ertel and concerned citizen Bud Garner - who Ertel defeated in the Republican primary last year - both raised questions of constitutionality.

Federal agencies, they argued, are required to obtain consent from state legislatures before acquiring any land.

This was news to Smith, who said that over a 20-year career, he'd never seen the BLM, or any other agency, approach the State Assembly for such permission.

"I'd like to see it," Ertel replied. "As a county commissioner I don't like the federal government expanding its presence in Montezuma County and taking private property off the tax roles."

Chappell sought to bring the conversation back to the narrower issue at hand. Before it decides how to use the newly acquired water rights, the BLM needs to complete a land health assessment.

"The team is multidisciplinary, with a soil science expert, an ecologist, a rangeland conservationist, a wildlife biologist'. They examine the condition of the vegetation, soil and water sources. Do weeds need to be treated? Are there places with excessive erosion," Smith said. "Then they make a determination of how many head of livestock the piece of land can support without degrading it."

But the personnel and funding available to complete the study aren't immediately available, said Marietta Eaton, Anasazi Heritage Center/BLM Canyon of the Ancients manager.

The commissioners questioned how the BLM could afford to purchase the land in the first place but not round up the comparative chump change needed for an assessment.

Eaton explained that the money comes from different sources. Plus, she said, the local BLM office has several vacant staff positions right now.

Chappell said it should be straightforward to request the needed experts from other Forest Service or BLM offices.

"It bites you when they won't get in gear and get it done," he said Wednesday.

Chappell voiced concern about preserving the ranching heritage of Montezuma County. He was suspicious that the BLM will not return grazing privileges to the former Wallace tract after completion of the assessment. He feared that by the time an assessment is completed, the younger ranchers who might have interest in grazing that parcel may have given up and moved on.

"If you're not careful, you slowly lose your ranchers and it changes the face of your community. I happen to like seeing cowboys driving down the road on the way to summer pastures," he said.

Smith and Eaton said the BLM is not opposed to livestock grazing at all. There are 23 existing grazing allotments within Canyon of the Ancients boundaries, Eaton added, and only two are vacant.

The BLM is supposed to go before the Colorado Judicial Branch's water court in Durango in the next few weeks to extend the conditional water rights for another six years, which Smith said is standard procedure.

Ertel wants the BLM to relinquish the conditional rights and reapply once they've completed the assessment and can say precisely how much water is needed, and for what purposes.

Smith said he would try to reduce their concerns by issuing a new explanatory document with more specific language, but that promising future cattle grazing rights at this stage would be premature.