by Larry Calloway

Tom Tucker spreads his fingers. This is the way the water used to run, he says.

Spanish Creek, like the others that flow through the Baca Grande subdivision, no longer fans out as it pours into the San Luis Valley. Its newborn water from the high basin south of Kit Carson Peak was disciplined long ago to serve the hay fields and pastures of the ranch that is now the Baca National Wildlife Refuge.

Still, the pretty little mile of Spanish Creek from Wagon Wheel Road to Camino Real (Two Trees) is one of the most popular walks in the subdivision. A dedicated greenbelt protects the streamside woodlands as this stem of the creek bends in a rough arc to some sand hills. But there is more protected land on the southeast flank of the belt, and this is where Tucker and Noah Baen of the Crestone Baca Watershed Council are taking us, on one of their monthly demo tours, out in the Grants section of the subdivision.

The Crestone Baca Land Trust acquired a number of Grants lots between the greenbelt and Brook Trout Road and converted them into a conservation easement. It’s an open area of humpy grasses where nervous elk graze in small groups and coyotes in the thickets are heard but seldom seen.  In the background is the gallery of indigenous Narrowleaf Cottonwoods with flittering shadows of swallows and other birds.

But everything in the flat foreground is dry. That’s a problem, according to Tom and Noah. They pointed out swales of slightly greener kinds of grasses and plants like yarrow as evidence of a watery past. Tom calls them mesic species – inferring an environment of intermittent water. They hang on, though the water is gone, because of deep roots established at least a decade ago, he says.

Jan Miiller, who joined the tour, recalled what it was like the first couple of summers when she and her husband, Bill, began building their place on Brook Trout in 1999. There were two seasonal pools here and the wetlands extended out beyond the trees.

Now some less thirsty species are beginning to take hold in the dried-up meadow. Noah pointed out new thistles in the empty depressions.

So how do they propose to water this grass? Restoration would involve removing some serious obstacles—both physical and legal. Spanish Creek was diverted from its natural course when Wagon Wheel was built as a main road in the subdivision more than 40 years ago. A culvert was installed in a convenient place, and the water was channeled through it. Later a ditch was scraped to carry water away from what seems to be the main stem of the creek, but the ditch has been dammed. That pile of dirt and rocks could be removed by a backhoe, except . . .

Well, this is where you need a lawyer. As much as 90% of the water streaming out of the Crestone range of the Sangre de Cristo Mountains belongs to the U. S. Fish and Wildlife Service. The government acquired the water rights along with the remainder (after creation of the subdivision) of the Baca Ranch. And the rights are impressive. They are prior rights, established in the 19th century under the first premise of western water law:  “Priority of appropriation shall have the better right.”

Out on the refuge the agency is beginning restoration of the barren riparian areas destroyed first by livestock grazing and now by the predator-free elk (recently counted at about 2,300).  To keep the elk away from the streamsides, where they eat the shoots of willows and cottonwoods, the agency is building high electric fences. The electrified rectangle protecting Crestone Creek is a mile long. Volunteers are helping to plant, hopefully, sprouts of future trees.

But this restoration, too, requires water. And there is not enough of it to go around. Ron Garcia, manager of the refuge, is familiar with Spanish Creek and the case Tom and Noah are trying to make. True, many places had water when, in his words, “the sponge was full.” But these are dry times. “In Spanish Creek the Fish and Wildlife Service does have the water rights, and there’s not enough water to satisfy them,” he told me in an interview about this.

Tom Tucker and Noah Baen have a new view of water rights. They asked the POA board in April to write a letter to the Colorado Water Conservation Board with the purpose of acquiring water “instream flow” rights on streams passing through the Baca subdivision. Slowing, or even diverting, water to improve riparian areas above the refuge would require findings that this would not be “consumptive” use.

Garcia’s response to this idea is that, at least on the Brook Trout easement, there is no instream flow because there is no live stream. “Instream flow rights pertain to where water is now,” he said.

Meantime Spanish Creek (and the others) living with less, frolicking, meandering, gurgling, splashing, goes where it is told to go.