Brief by Central Staff
Water – April 2004 – Colorado Central Magazine
An agreement reached last year on river flows through the Black Canyon of the Gunnison has been challenged in federal court.
The agreement was between the U.S. Department of the Interior and the State of Colorado. It provided for a guaranteed minimum year-round flow of 300 cubic feet per second, with peak flows in wet years of 10,000 cfs or more.
It was supposed to settle the issue of “quantification” for the Park’s water rights, which date to 1933 when President Herbert Hoover created the Black Canyon National Monument, between Gunnison and Montrose, with a presidential proclamation.
When that happens, a federal “reservation” is created, and part of the deal is that sufficient water rights are reserved, as of that date, to serve the purpose of the reservation — in this case, to preserve the scenic and natural attributes of the canyon.
Without the high peaking flows, sandbars build in the canyon and trees take root, thereby changing its nature.
Under the 2003 agreement, peaking flows are expected, but not guaranteed — in the past 27 years, there have been three high spring run-offs with big cleansing flows of more than 10,000 cfs.
Seven environmental groups filed suit, arguing that the agreement, since it does not guarantee regular canyon-cleaning peak flows, violates the law for protecting the natural attributes of national parks. Preliminary arguments were scheduled for March 17.
The back story here concerns about 240,000 annual acre-feet of water stored in the three reservoirs of the Aspinall Project, upstream from Black Canyon. That water has been coveted by some Front Range users, but a Colorado water judge has ruled that the water is already being put to “beneficial use” by the U.S. Bureau of Reclamation, which administers the reservoirs, since the water generates electricity, among other things.
Presumably, the Bureau could change the beneficial use and arrange to sell the water to a Front Range city with the ability to transport the water 200 miles across two or three mountain ranges. One thing to keep in mind here is that under Colorado law, this upper Gunnison water is already being put to use; it’s not just sitting there waiting to be claimed.
As noted, the Bureau might be able to send that water east. But if the water were required for Black Canyon operations, then the Bureau couldn’t. So at the heart of this litigation, there’s a lot more than Black Canyon vegetation at stake.
