When I previously reported on this topic a handful of people had blocked a mountain creek containing native Rio Grande Trout. I was hopeful that the proper agencies would quickly have the stream restored to its natural condition. Since then the U.S Army Corp of Engineers (USACE) have acknowledged the concern, the Department of Wildlife (DOW) has made an initial inspection but subsequently has not indicated their intentions, and the County Land Use Office are following their protocols having now been made aware of the situation. There is also the Division of Water Resources (DWR) who for the past 125 years have been empowered to enforce the water laws of the State of Colorado. In short - first in time, first in line. They seem to have departed from their stated responsibilities by favoring the wrong doer who installed the creek blockage without seeking any approval or permits from anyone. The water commissioner then rewarded the wrong doers by issuing approval post installation. This sends a message to future violators who may misappropriate water belonging to others by enabling them to do what they want and the agency will help make it right after the deed has been done.
To compound the enabling conduct the DWR made it expressly clear that if the company who owned water rights found this misappropriation grievous enough they could require our community to remove dams that form surface lakes, therefore making any contact with them on our part extremely risky. It is unknown if the water rights owner has knowledge of this but to risk losing the lakes in the community would negatively impact all property values and remove water the community relies on for recreation and wildfire protection. This single act by a few people has put an entire community at high risk that has long reaching effects. To remove the lakes would probably result in law suits and stress the finances of the association and the county which is already functioning on a very tight budget.
This situation clearly demonstrates that might is right and possession truly is 9/10 of the law. The water was diverted and taken without approval, destroying the natural resources in the process. The DWR is not only condoning this but myopically facilitating it. The above photo reflects the current condition of what used to be a clear sparkling mountain creek. I have heard reports that there are dead fish at the site but I have not witnessed them myself. As our temperatures continue to drop and the water cools the fish are unable to migrate downstream to deeper water in order to survive the winter. Instead they find themselves landing on dry rocks to die. To me the plight of the fish brings back horrific memories of 9/11 when people were leaping from the top of the towers. That terrible memory will be burned in my mind until the day I die and I still have nightmares from that sad day. I’m not diminishing those who died on 9/11 or those who continue to suffer their loss by comparing them to fish. To this day the recollection of that event haunts me just like many other Americans. The fish are faced with essentially the same situation. Either leap to the dry rocks in a false attempt at freedom downstream or die a slow death when the creek freezes this winter. Our night temperatures currently are falling to the high 30’s so it won’t be many weeks before the creek freezes at the blockage and the upper creek flow is blocked. This obstruction severely slows the water which barely runs through the blockage presently. This clearly proves the law of physics that states ‘when there is an action there is an equal and opposite reaction‘. The water commissioners report stated that once the fish were happy and the various agencies concerned were satisfied he would approve the project. He apparently has already given approval for the project and none of his recommendations have yet to be been implemented. The fish may not be ‘happy’ for quite some time with winter rapidly approaching. Their time is quickly running out for resolution.
The very government agencies from whom approval was required on this project are now hindering the restoration of the stream. Those individuals who were responsible for this blockage have either been voted out of power or resigned from the Land Owners Association and new conscientious leaders have taken over. They are now presented with a real mess. The new leadership wants to have the creek fully restored but that now involves obtaining permits so restoration can be done correctly and legally. The government system that should have prevented this needless destruction of a pristine creek, had they initially been consulted, is now serving as a hurdle to restoration. The other agencies seem to be allowing the DWR to assume the lead and appear to be allowing them to resolve the issue, hence being in no hurry to be involved. The county Land Use Office according to its protocols won’t issue a permit until the other necessary agencies first approve and even then they need at least two weeks to study the issue before deciding. It appears that time is quickly running out this year for any resolution and the fish upstream may be doomed. Perhaps it is the plight of the fish coupled with the anniversary of 9/11 that makes the memory of that terrible date so vivid. What ever the reason, the road to the site is not maintained in the winter and the creek may freeze trapping the fish in an icy death before restoration can be accomplished or spring arrives.
So the final question remaining is this: does government work "of the people and for the trout". The answer to that is it clearly hasn’t worked this time. Would I ever report a similar instance again? It was the right thing to do so I would do it again. I would never have believed or expected the government agency to come to the aid of the violator. While I strongly support wildfire mitigation I do not support accomplishing it improperly as in this case of taking it by force. This has been a very frustrating experience when it should have been a simple quick solution. As a concerned citizen there is nothing further to do and the result is now up to the four required agencies.
For more on Bruce and Carol McElmurray and mountain living go to: http://www.brucecarolcabin.blogspot.com