Agreement ends water dispute

DENVER — Environmental interests are hailing the final decree in the decades-old Gunnison River water case as a win for all concerned.

“We reached a settlement anyone can live with,” Bart Miller, water program director at Western Resource Advocates, said Wednesday.

Miller’s organization represented five conservation groups, including the Western Colorado Congress.

“That’s a big change to the status quo,” Miller said.

The decree, signed Dec. 31 by Gunnison Judge Steven Patrick, ends a 30-year tussle over flow rights for Gunnison River water in the Black Canyon of the Gunnison National Park.

Patrick’s decree formalizes an agreement hashed out between scores of interested parties last year.

Among other provisions, that agreement creates a flow regime based in part on the availability of water, with a base flow of 300 cubic feet per second and even higher peak flows, depending on spring runoff.

The park was still a national monument when a 1978 decree established the federal government had water rights in the Black Canyon, and ordered the National Park Service to quantify the right. The NPS then studied the river’s flow for several years before engaging in discussion with other federal agencies, filing its water claim in 2001.

The Black Canyon was established as a monument in 1933, which gave the federal government priority rights over users whose rights were established later.

But numerous stakeholders — individual water users, farmers, ranchers and conservation groups — objected to the 2001 filing and the 2003 agreement between the feds and the state, which gave the Black Canyon a state water right.

Several environmental groups, including Miller’s, sued and the agreement was overturned in 2006, with a finding that it did not adhere to the Environmental Policy Act; that the federal government delegated management of its resource to the state and illegally disposed of federal property, as well as violated the fiduciary duty to protect the park.

Miller said the 2003 agreement allowed for a bare-minimum flow and gave Colorado a peak flow. It was a “bad, back-room deal” that didn’t involve enough of the stakeholders, Miller said.

But the new agreement was a different ball game. “It was an open-door process,” Miller said. “It had many parties at the table. It took a long time, but because we had all the players, we got an outcome everyone can agree to.”

Of close to 400 interested parties, 50 participated in mediation sessions that lasted for up to two days at a time.

“We got everyone close enough to what they wanted so everyone could live with it,” Andy Spielman, an attorney with the Hogan and Hartson law firm, said. “Nobody gets everything they want, but hopefully, everyone gets enough of what they want.”

Hogan and Hartson took the case pro-bono, with Spielman contributing more than 2,000 hours.

“My hat’s off to everybody who participated in the case. This is a very emotional subject matter, near and dear to a lot of people’s hearts,” he said, calling the compromises made “a win” for the Gunnison Basin.

Western Resource Advocates said the new flow regime will help restore ecological balance that’s been disrupted by the installation of three dams; create a better environment for trout, as well as clear debris and “improve the aesthetics” of a river that draws thousands of visitors to Montrose County each year.

The finalized agreement includes provisions assuring the federal government will continue to operate the Aspinall Unit with an eye to flood control. The decree “shall not be exercised to supersede flood control operations.”

The provision is geared toward protecting human life and property along the Gunnison River downstream of the park, particularly in Delta County.

The agreement also includes provisions for reclamation projects, drought recovery, fisheries and endangered species.

Miller said the agreement notes certain junior irrigation rights and other water users within the Gunnison Basin can continue their diversions as though they were senior to the park’s right.

In the past, the Gunnison experienced little by way of peak flow, with the exception of high-water years, such as 2008.

Spokespeople at Black Canyon of the Gunnison were awaiting word from Denver and the NPS before commenting.