Feds won’t challenge Black Canyon decision

Flows through the park still need to be quantified

Matt Hildner

Daily Press Writer

MONTROSE — A chapter in the water rights dispute over the Black Canyon of the Gunnison National Park closed last week when the federal government decided not to appeal a U.S. District Court ruling.

The U.S. Department of Justice withdrew a notice of appeal on Dec. 27, relinquishing the right to challenge Judge Clarence Brimmer’s decision to set aside a 2003 agreement between the state of Colorado and the Department of the Interior.

“It’s a fresh start,” said Bart Miller, an attorney representing five of the seven environmental groups that challenged the 2003 agreement. “It allows us to begin the real work.”

Still remaining, however, is the task of quantifying the amount of water that should flow through the Gunnison River to protect fish and preserve the recreational and aesthetic characteristics of the park.

In September Judge Clarence Brimmer had set aside the agreement between the federal government and the state. That agreement would have given the national park a 1933 priority date for the right to base flows through the park at 300 cubic feet per second.

It also called for the Colorado Water Conservation Board to hold an instream flow water right with a 2003 priority date for any water left over after the needs of the Aspinall Unit had been satisfied. The Aspinall is composed of three dams upstream of the park, including Morrow Point, Crystal and Blue Mesa.

Calling the agreement “arbitrary, capricious and an abuse of discretion,” Brimmer ruled that the federal government had unlawfully delegated responsibility to the state in striking the agreement. He also held that the federal government had unlawfully disposed of federal property without Congressional authorization.

The initial attempt in 2001 to quantify the park’s right in state water court kicked up opposition from more than 380 groups, although talks for a negotiated settlement had started before the federal case.

Miller hopes all of the parties involved in the case can resume discussions for an out of court settlement.

He said the Brimmer’s ruling made it clear that the park had a need for an annual peak flow through the park.

“I’m confident that the groups can find a way to meet the park’s needs in a way that the (2003) agreement never could have,” he said. “It didn’t actually secure much at all for the park and that’s what we’ll have to work on going forward.”

John McClow, an attorney for the Upper Gunnison River Water Conservancy District, also hopes the end of the district court case means all of the parties can sit down again for negotiations.

He estimated that roughly 65 percent of the water users in his district hold rights that would be junior to the park’s 1933 priority.

But he hoped that all of the parties involved can address the Black Canyon’s water right and an environmental impact statement that the Bureau of Reclamation is working on to protect endangered fish species on the Gunnison.

“It just makes sense to put the two together as a single settlement,” he said, noting that they address the same stretch of the river and would require similar flow patterns at the same time of the year.

Contact Matt Hildner via e-mail at matth@montrosepress.com