More water is needed downstream of McPhee Dam than the 40 cubic feet per second now being released, said Mike Japhet, fish biologist for the Colorado Division of Wildlife. Securing a non-consumptive water right that could never be diverted would benefit river and riparian habitats on public lands, he said.

"That is one lever we can use," Japhet said during a fish-population study on the Dolores last week.

Shallow conditions compromise the cool water temperatures native trout need to thrive, he said, especially during the hotter summer months. Increasing the release would especially secure the health of native rainbow and cutthroat fish during periods of drought.

"We need additional water in the summer," Japhet explained. "Right now it is at 40 cfs, which is enough for the winter, but we need at least 80-90 cfs for the summer months."

Studies last week showed healthy populations of fish, but biologists are worried about current and future conditions.

If low summer flows contributing to warmer waters persist, the river faces the potential for a large fish kill as it had in 1993. Warmer waters also tend to increase the numbers of the non-native German brown trout, which compete with native species for food and space. German browns are a more aggressive species than native trout, and can handle warmer waters better.

Much of the Dolores River downstream of the dam is part of the San Juan National Forest and its watershed, as are forest lands below development on the Mancos, Piedra, and Animas rivers. Water rights being claimed by the Forest Service for natural ecosystems on the Dolores River could force the Dolores Water Conservancy District to release more water that is now mostly sold for irrigating croplands.

"Forest Service claims on water are a real concern for us," said district Manager John Porter. "If the Forest Service is granted the rights, it would mean more water released than is now."

Porter said that if the DWCD could increase its pool of water currently reserved for the fishery downstream of McPhee by 3,300 acre-feet (as mandated by the U.S. Bureau of Reclamation to improve fish habitat) it may satisfy the Forest Service water-right concerns on the Dolores.

The DWCD’s long-range, and yet unfunded, plan to obtain extra fishery water is to construct a $6 million dam on Plateau Creek north of McPhee for additional storage.

How much the Forest Service claims will be is unknown for this region, pending the result of ongoing negotiations between the Forest Service, Colorado Water Conservation board, and Southwest Water Conservancy district. A settlement is preferred in lieu of litigation, but if one cannot be negotiated, it will be up to the courts to decide.

"The issue has sat dormant for 20 years, so in the last two we have been trying to resolve it," said Dave Gerhardt of the San Juan National Forest office in Durango. "We hope to have a decree within a year."

Some downstream conditional water users would be affected if the instream rights, now controlled by the state of Colorado, are obtained by the Forest Service, although by how much is unknown, pending scientific studies on each stream. The Forest Service is claiming the non-consumptive water right under Federal Land Policy Management Act, and the 1897 Organic Act, which stipulates "favorable conditions for streamflow" in the nation’s forests.

The Forest Service interprets that to mean that they are responsible for maintaining the integrity of streams that require a range of flows over time. They cite the importance of protecting fisheries, riparian areas, clean water for downstream communities, and tourism industries offering angling and rafting. Right now, Colorado has the ability to change the instream rights needed for aquatic habitats, without input from the Forest Service.

What could come into question is how the instream right affects existing conditional water rights — those rights that have not been exercised but have been filed for with the intent to put them to beneficial use.

"The real concern is that the new rights will disrupt the system now in place," Gerhardt said. "It is a sensitive issue, and we are not saying that one shoe fits all situations. We will be working to meld everyone’s interests in the best way possible."

A San Juan National Forest information release on the subject states: "We are interested in leaving enough water in National Forest streams and rivers to keep them healthy and functioning. For example, if a developer who owns private lands upstream of the National Forest wanted to dam and store all the water in a stream there currently would be nothing we could do to protect the stream, even though it could seriously impact National Forest resources."