Daily Press Writer
MONTROSE — In 1933, President Herbert Hoover created the Black Canyon of the Gunnison National Monument “for the preservation of the spectacular gorges and additional features of scenic, scientific and educational interest.”
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Gathering the data
Under federal law, when land is set aside for preservation, the federal government is given a federal reserve water right, often called the Winters Doctrine. While no quantified amount of water is set aside in a federal reserve water right, the government claims “water then unappropriated to the extent needed to accomplish the purpose of the reservation.”
In the early years of the Black Canyon, the Park Service did not exercise the water right. But in 1978, a federal judge ruled the U.S. Department of the Interior, which operates the Park Service, has a federal reserve water right in the Black Canyon.
“It (the court ruling) said there was a water right, but it did not say what that quantity was,” said Chuck Pettee, National Park Service water rights office chief. “It directed the Department of Interior (to quantify the right).”
Pettee has been involved with the water rights case in the Black Canyon since the beginning. He was hired in 1985 to manage water rights for the National Park Service and has seen the evolution of the case.
“We started collecting data, and we became involved in the activities on the river,” Pettee said.
Once the Park Service had some baseline data, it proposed a variety of water rights but none was ever acted upon. During the process, the Park Service organized a series of meetings in the Gunnison Basin. At the meetings, Park Service officials presented possible direction for an eventual filing in water court.
John McClow, an attorney with the Upper Gunnison River Water Conservancy District, remembered the meetings, which he termed “a dog and pony show.” He said dialogue was very open and the Park Service was seeking responsible water flows through the canyon.
“They were about compromise,” McClow said.
Filing for the right
The era of compromises ended in 2001. As the Clinton presidency came to a close, the Department of the Interior directed the Department of Justice to file a quantified federal reserve water right claim in the Black Canyon. On Jan. 18, 2001, Department of Justice attorney David Gehlert filed the claim in Montrose.
The filing is to “ensure the continued nutrition, growth, conservation, and reproduction of those species of fish which inhabited such waters ... (and) to attain and preserve the recreational scenic, and aesthetic conditions existing on the applicable reservation dates ...,” according to court documents.
Trying to mimic the natural cycles of the river, the filing wants water in the canyon to increase in the spring and decrease in the fall. This is how the river operated before Blue Mesa and other dams were constructed on the Gunnison River.
To achieve the goal, the filing contains complex formulas, which are used to calculate the amount of water released from reservoir into the river and down the canyon. On heavy snow years, the flows could be as high as 9,000 and 10,000 cubic feet per second.
A cubic feet per second, or cfs, is 450 gallons a minute.
Pettee said a normal hydrograph pattern of water flow through the canyon had been talked about since the late 1980s.
“We recognized, at least internally, we needed a natural hydrograph,” Pettee said.
Wendy McDermott, High Country Citizens Alliance executive director, said the 2001 filing “is based on 10 to 15 years of research” and would protect endangered fish and preserve the natural beauty of the canyon.
She said raising the river level in the spring, when the river would normally run high, flushes sediment in the river, unclogs the stream channel and allow national park visitors “to see and hear the river.”
“It is real important to the ecology,” McDermott said.
Throwing grenades
But many feel the 2001 filing was politically motivated and potentially harmful to water users in the basin.
Ranchers in the Upper Gunnison Basin have reason to be concerned about a reserve water right in the Black Canyon. The park was created in 1933, giving the reserve water right that priority date. A majority of the water rights on ranches in the Upper Gunnison Basin have a 1941 priority date, which is junior to the federal reserve water right.
“It would impact the entire economy of the basin,” McClow said.
McClow said most ranchers in the basin have two priority dates. A water judge first adjudicated the basin in 1906, but the quantity of water was calculated based on Front Range soils. Soils in the Upper Gunnison are gravely and drain faster than on the Front Range. To compensate for the difference, Gunnison ranchers were given a second decree that was three times the original decree in 1941.
Also, McClow said the 2001 filing seeks to have the river raised slowly over 85 days. This would coincide with the time of year when ranchers irrigate pastureland. McClow said since 65 percent of the water rights in the basin are junior to the 1933 reserve water, ranchers could not create enough good pastureland.
“We have tested our hypothesis, and it would be a disaster for the basin,” McClow said.
McClow said the court filing was promoted by “Clinton radicals.”
“It was done days before the Clinton administration went out of office; you can speculate on the motivation,” McClow said.
Marc Catlin, Uncompahgre River Water Users Association manager, said the he opposes the quantities in the 2001 filing and said it was improper for the Clinton administration to file such an important document at the end of a term.
“They left a hand grenade,” said Catlin. “It went off. What are you going to do?”
He said ranchers in the Upper Gunnison have every right to be worried about the reserve water right. They have depended on the water for generations and could have their livelihood take away.
“If you are a rancher up there, you have to be scared,” Catlin said.
Pettee said officials in Washington were aware the reserve water right and need to quantify it for years but decisions on the filing at the end of the Clinton administration were made in Washington, D.C.
“It would be a surprise to me if politics weren’t involved,” Pettee said.
He said the Department of the Interior, under former secretary Bruce Babbitt, also filed a reserve water right claim at the Great Sand Dunes National Park at the end of the Clinton administration.
“Obviously, politics is politics,” Pettee said.
The case builds
Once the reserve water right was filed, the case grew. Colorado water law allows parties to become involved in a water case if they think they will be harmed. Farmers throughout the Western Slope, environmentalists and water groups all filed petitions to become involved in the case. In the end, over 350 petitions were filed, making it the largest water case in the history of Colorado water law.
“I don’t think we were surprised it got so big,” Pettee said.
Catlin said farmers in the basin joined the case, wanting to protect the agricultural interests in the Gunnison Basin. He said the water right in Taylor Park, where the Uncompahgre River Water Users Association stores water, is junior to the 1993 reserve water right. So, farmers in the Uncompahgre Valley could be impacted by the filing.
“There were a lot of growers who couldn’t afford it but they did it,” Catlin said.
In Oct. of 2003, Water Court Judge J. Steven Patrick put the case on hold, allowing all the parties in the case an opportunity to reach an out-of-court settlement. McClow said there were a lot of productive discussions during that period. The environmental groups understood the concerns of the upper Gunnison and were willing to compromise.
In 2001, Bruce Driver, executive director of the Land and Water Fund of the Rockies, and Bart Miller, water program director for the Land and Water Fund For Colorado, did an informational tour of the Upper Gunnison and learned about upper Gunnison ranchers’ trepidation.
“Many expressed a concern the Black Canyon right has the potential to disrupt some historical irrigation practices in the basin through increasing the chance that water rights junior to the canyon might be “called out” in a dry year,” Driver and Miller wrote in a letter to former Interior Secretary Gale Norton.
While negotiations among the parties were taking place, the state of Colorado started negotiations with the Department of the Interior. On April 2, 2003, a settlement was announced between the state and the federal government.
Under the agreement, the federal government would abandon the 1933 reserve water right. The National Park would get a base flow of 300 cfs in the canyon and a 2003 state water right, which would be managed by the Colorado Water Conservation Board, that would be used to mimic natural river flows.
The settlement was supported by many people involved in the case but the environmental community objected. They argued they had asked to be involved in the negotiations but were not allowed at the table.
“Despite these requests, the opposers have not been invited to a single negotiation session,” an Oct. 2002 filing said.
Federal court takes control
A coalition of environmental groups eventually filed a case in federal court. They claimed the settlement with the state of Colorado was illegal and did not follow proper procedures and asked a judge to void the agreement.
“Our primary goal is to have the Park Service assert its water right to preserve the natural resource,” said Drew Peternell, an attorney who represents Trout Unlimited in the federal case, saying the settlement “goes in the wrong direction.”
He said the Department of Interior did not conduct a National Environmental Policy Act study on the settlement, violated its obligation to preserve the park, unlawfully disposed of federal property without congressional approval and unlawfully delegated responsibility to the CWCB.
In Denver last month, the government and the coalition of environmental groups held a hearing in federal court. The judge will decide if the agreement between the state of Colorado and the Department of Interior is valid in the next several months.
Peternell said the 2003 settlement would never achieve the goals of the 2001 filing. The only time the canyon could receive hydrograph-type flows is when the Blue Mesa Reservoir fills, something that has only happened three times in the last 24 years.
“The proposed amendment application ... would eliminate the peak and shoulder flows claims in this case and substantially alter the factual and legal issues before the court,” a court document said.
McDermott said the federal government has an obligation to preserve the national park for future generations. She said it is a natural treasure and the “settlement agreement of 2003 does not protect the park.”
She said she understands the concerns of the Upper Gunnison and other users in the basin, but the process should be fair and legal.
Moving forward
Everyone involved in the case said it will be years before the issue is resolved. The case before the federal judge could get appealed and there is the potential, because of federal-versus-state issues, it could reach the U.S. Supreme Court.
Once the federal issues are resolved, the water court case in Montrose must still be resolved.
“This could go forward for a bit, but it is important,” McDermott said.
McClow said he is confident that the federal government has a reserve water right but he would like to a resolution that benefits everyone involved. He said the farmers and ranchers in the Gunnison Basin depend on Gunnison River water to earn a living.
He said there are still a lot of issues that need to be resolved in the federal court and it will take a lot of time before it all settles out.
“They will have to make it back to water court, but what is left is still to be determined,” McClow said.
Peternell said the groups he represents are willing to compromise and knows there will be a lot of court filings and hearings before the issue is resolved.
“The whole process could take a long time,” Peternell said.
He said a settlement does not have to be based on the 2001 filing with a 1933 priority but it should be senior to the Blue Mesa Reservoir, so the right is protect against future development in the basin.
“It might be possible that we do a different right,” Peternell said.
Catlin said he wants to see an agreement reached but he knows it will take a long time.
“In the meantime, how are we going to plan for the future of Western Colorado,” Catlin said.
Contact James Shea via email at Jamess@montrosepress.com
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