Groups close to agreement over Black Canyon water use

“Everyone negotiated in good faith”

A seven-year lawsuit to quantify the amount of water that should flow through the Black Canyon of the Gunnison is nearing resolution.



On Friday, June 6, government officials and environmental groups announced that a tentative settlement agreement has been reached among the principal parties in the case, meant to strike a balance between the needs of various water users and the natural environment of the Black Canyon.
“Not everyone got what they wanted. But nobody was left without,” says Upper Gunnison River Water Conservancy District (UGRWCD) attorney John McClow.
UGRWCD manager Frank Kugel says the agreement “provides a firm number for (stream flows) in the canyon while protecting water rights in the upper Gunnison valley.”
Last July the UGRWCD reached an important milestone in the litigation when the state agreed to honor 106 stipulations between the federal government and local water users, thereby protecting the water of the Upper Gunnison Basin. Water rights are allocated by the state, not the federal government.
For the past nine months the groups involved in the case have been debating the other half of the equation—how much water should flow through the canyon when a certain amount is already reserved for local users.
The history behind the debate seems as old as the canyon itself.
A  2,000-foot-high canyon carved over the course of two million years, the Black Canyon of the Gunnison was declared a national monument in 1933, and was upgraded to national park status in 1999.
The federal government holds the right to reserve water for public interests, a doctrine that extends onto national park lands and other federal reservations. Following a 1982 court decision between the city of Denver and the National Park Service, it was known that the federal government had reserved enough water “to preserve unimpaired the natural and cultural resources and values of the National Park System.”
In 2001 the National Park Service filed an application in Gunnison District Water Court to quantify their federal reserved water right, based on a 1933 priority date, for the amount of water the Park Service felt necessary to protect and preserve the Black Canyon.
The Park Service and various environmental groups have argued that the Black Canyon has been in a state of environmental degradation due to sediment and vegetative build-up, caused by a lack of spring flushing flows ever since the Wayne Aspinall series of dams was built above the canyon in the 1960s.
With their 1933 priority date, the National Park Service called for base flows of at least 300 cubic feet per second throughout the year, and higher flushing flows between May and June.
Within weeks of that application, 386 different individuals and entities filed statements of opposition in the local district water court, including ranchers, developers and recreational users.
McClow says the problem was not that the Park Service was requesting a certain flow, but that their request would have superseded longstanding water rights for ranching and agriculture in the Gunnison Basin due to its older 1933 priority date.
Water rights in Colorado are awarded through a system of prior appropriation, whereby older (senior) water rights have priority over newer (junior) rights.
“Having a water right of this priority in this basin, which has been inserted into the priority system ex-post-facto, could have had a dramatic impact,” McClow says. “It could have called out a significant percentage of irrigation water rights, and nearly all the wells in the basin.”
Most Gunnison Valley ranchers have a 1941 water right issued through a blanket decree by the local district court that year, providing additional water deemed necessary for adequate irrigation for the valley’s rough soils. Kugel says, “Their 1941 water rights decrees are extremely important for successful ranching operation in the valley.”
In 2002 the federal government entered settlement negotiations with the hundreds of parties opposed to the Park Service’s application.  At that time the federal government began agreeing to water rights stipulations with local water users.  Twenty two stipulations were forged during 2003, and 84 more by March 2007.  

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