Article by George Sibley
Water – November 1999 – Colorado Central Magazine
FOR THOSE WHO DREAM OF EMPIRE, there is the story of the Gordian knot. Gordias was a peasant in Phrygia, one of those little Asia Minor kingdoms back about Minus-Y1K. His people chose him to be king. His only notable feat was to dedicate his wagon to Zeus, which wagon he tied to a pole with an intricate knot — a knot so intricate that someone (Zeus, I hope) said that whoever was able to unravel the knot would go on to reign over an Asian empire. Alexander of Macedonia — on his way to becoming Alexander the Great — came along and undid the knot with a stroke of his sword. Alexander went on to create an empire that stretched all the way from Greece to somewhere around India, where he died of alcoholism.
There may be a lesson there about empire, and those who dream of it. But the analogy here is to the knot, the Gordian Knot. I want to describe a situation so tangled, so knotted up in its own contradictions and complications that its undoing might be an act worthy of those who dream of empire — and certainly those who still dream of empire along the Front Range of the Colorado Rockies are in there plucking at threads. This is the Gunnison Knot, in the upper valleys of the Gunnison River in central Colorado.
Like all mountain rivers, the Gunnison begins in many places: on the western slopes of the Collegiate and Sawatch Ranges on the Continental Divide, on the south and east sides of the Elk Mountains, and the north slopes of the San Juans. Five major streams (and a number of smaller ones) come together in the Upper Gunnison basin. The East River, a broad-valley stream flowing off the Elks, and the Taylor River, more of a canyon stream coming off the Collegiate Peaks, meet to form the Gunnison River about ten miles north of the present-day City of Gunnison. They are joined near Gunnison by Ohio Creek, flowing off the West Elks, and Tomichi Creek, another broad-valley stream from the Sawatch Range and Cochetopa Hills. Then another fifteen miles downstream, the Lake Fork of the Gunnison flows in from the northern San Juans.
West of that junction, the river (in its once-and-future natural state) drops through a series of canyons culminating in the Black Canyon of the Gunnison, a dark cut in Precambrian rock that has one of the greatest depth-to-width ratios of any canyon in the world.
All of that is what can be called the Upper Gunnison basin.
Below the canyons, the river is joined first by the North Fork of the Gunnison flowing out of the Elk and West Elk Mountains, then by the Uncompaghre River flowing out of the northern San Juans. The Gunnison then flows on into the eroded high desert of the Colorado Plateau where it joins the Upper Colorado River at Grand Junction to make up the mainstem of the Colorado River (which is later joined by the Green, Dolores and San Juan Rivers).
The Upper Gunnison River basin (and other mountain basins like it) is what you might call “the enabling anomaly” for the modern American West: it’s a wet place in a dry land. Most of the American West is dry by nature — either semi-arid (10-20 inches of precipitation a year) or just plain arid (less than 10 inches a year). That aridity is just the nature of a lot of what we call the West.
But the dominant culture of the West, this past 150 years, has been to deny that nature in any way we can. How else to explain the existence in the deserts of the Southwest of great cities like Phoenix and Los Angeles, tens of millions of people living with lawns and swimming pools in places with less than 10 inches of rain a year? Deserts are antithetical to American culture, so we have wanted America’s deserts to “bloom like the rose,” and as a result of that desire, and a lot of technological wherewithal, and a little water, a modest but significant part of the West that was dry by nature is now “wet by culture.”
What has enabled the (partial) realization of that cultural dream is the fact that only most of the American West is dry by nature. Arrayed across the West are north-south ranges of mountains that push the prevailing westerlies off the Pacific up into cooler parts of the atmosphere, condensing out moisture that falls on the mountains — rain in the summer, and (usually) lots of snow in the winter.
Thus there are, in these mountains rising out of deserts, valleys that have abundant water — valleys gouged out by lots of water (and once upon another time, lots of ice) gnawing away at the mountains; valleys where, in the spring, meandering streams overflow and turn their floodplains into shimmering wetlands half a mile wide and three inches deep; higher valleys so soggy with snowmelt and summer rain that only cold and a short growing season keep them from turning into jungles.
These mountain valleys are oases, waterholes in the arid and semi-arid West, and the West’s “desert empire” — those great desert cities and the systems that nurture them — is built on a foundation of political, economic, and technological systems for tapping into, storing, and moving around the water from these mountain oases. All that is woven into the core of the Upper Gunnison Knot.
BY THE STANDARD 19th-century utilitarian theology of the past two centuries in the West, natural streams and rivers have been considered just incomplete delivery systems for water. To complete the systems, it was necessary to build storage structures to keep all of the snowmelt water from running off in a useless two-month flood, and diversion structures to get the water out of the streams, onto the land, and into some human enterprise where it could serve a “beneficial use.”
Due to this utilitarian viewpoint, the legal term “beneficial use” is devoid of any evaluative criteria beyond human economic gain. Beneficial uses range from the creation of agricultural land through simple irrigation, to the destruction of whole mountainsides through hydraulic mining.
A whole body of water law — the appropriations doctrine — grew up around this process of storing and diverting water from streams, a system of law that has its own specialized lawyers, courts and judges. It was basically the kind of law you might expect of an empire; its volumes of cases fill many running feet of the water judge’s shelves.
But its essence can be summarized in four basic rules: 1) the water belongs to everyone — until anyone claims it, then it belongs to that one; 2) first come, first served; 3) use what you claim, or lose it; and 4) beneficial uses are those that divert water out of the stream (because humans don’t live in water).
Changes in the western economy, and hence in our perception of what is “beneficial,” have modified the fourth rule. Now some in-stream uses for water are recognized (so long as the humans claiming the water have some way of “controlling” it). But everything else on the water lawyer’s shelves consists of refinements of the basic four, designed either to protect the status quo or to encourage any entity big enough and rich enough to challenge the status quo. So far as this body of water law was concerned, if any water was left unappropriated in a river, then the settlement process probably just wasn’t done yet. This body of law is deeply woven into the Knot.
The Bigger Picture
There is nothing particularly new about this: for most of the six millennia that people have been gathering in cities, they’ve been moving water around to suit their urban purposes. But never before has it been done on the scale we’re doing it now in the American West — especially in that most arid quadrant of the American West, the Colorado River Basin, in which the Upper Gunnison basin is one small wet place.
The Colorado River is a 1,400-mile desert river that — in its natural state — carried water from the southern Rockies west of the Continental Divide down through canyons in the high deserts of the Colorado Plateau uplift, and thence out across the low deserts of the American Southwest to the Sea of Cortez and Pacific Ocean.
Today, of course, the Colorado River no longer flows to the ocean with much volume, except in an unusually wet year like 1983-84. Its water is far too valuable to go to the ocean (which doesn’t appear to need the water). Instead, the water is spread out to dry on the southwestern deserts, which do need it if they are to bloom like the rose.
Down in the Colorado’s Lower Basin, the region of the low deserts, the river’s water is spread in a vast manmade “delta” from the Phoenix-Tucson corridor in central Arizona on the east, over thousands of irrigated acres of desert in southwestern Arizona and southeastern California, and all the way west to the huge metropolitan area around Los Angeles and San Diego.
The massive plumbing system for this Lower Basin desert delta is the apotheosis of desert-river development: two huge canyon dams each backing up almost twice the average annual flow of the river, billion-gallon aqueducts pumping water more than 200 miles both east and west over desert and mountain to cities with combined populations of around 20 million, sprawling irrigation systems that produce most of the nation’s winter vegetables.
Different circumstances prevail up in the Colorado River’s natural tributary region — the Upper Basin, above the Colorado Plateau canyons.
This region of mountain valleys does not have the big expanses of potentially fertile desert land to irrigate, and there are many smaller flows to draw from rather than one big one. But there is a similar situation in the Upper Basin States with large out-of-basin population centers whose boundaries have no relationship to the basin watersheds. So “Utah water” from the Green River and its tributaries is siphoned out of the basin to the Salt Lake valley. “New Mexico water” from the San Juan River goes out of the basin to Albuquerque and Santa Fé. And “Colorado water” from the Upper Colorado River goes out of the basin to the metropolitan region around Denver east of the Rockies.
The Upper Gunnison River is, in fact, the only remaining major tributary of the Colorado River that is remotely accessible to those growing metropolitan areas surrounding the basin but is untapped by any of them. It’s the Southwest’s last waterhole — or so it seems.
This is not, at this point, for lack of desire for the water. An ever-changing array of water providers in the Denver metropolitan area — some of the fastest growing counties in the nation — have been making a concerted and sustained assault on the water of the Upper Gunnison basin since the late 1980s. And the people of the Upper Gunnison basin have unified against that effort, with equal determination, around the slogan, “Not One Drop!”
But if the people of the Upper Gunnison are unified in not wanting “our” water to go out of the basin, they are much less unified on what to do with it in the basin. The Upper Gunnison River Water Conservancy District (UGRWCD) — a taxing district whose board is charged with the development and management of water rights in the basin — is meeting significant opposition to its plans for keeping the water in the valley.
Recently, a “taxpayer revolt” forced the UGRWCD by petition to hold elections for board members, who have always previously, by state law, been appointed by judges — water traditionally being considered too important to be left up to the vagaries of democracy.
Further complicating the picture are major federal interests in Upper Gunnison basin water; two major federal interests are somewhat in conflict themselves. Also, one of the world’s largest mining companies has been seeking conditional water rights for a major new mine near Crested Butte.
Local “Not One Drop” mythology notwithstanding, the fact that the Front Range cities have gained no water from the Upper Gunnison for their considerable investment to date (estimated at more than $3 million) is probably due less to local opposition in the Upper Gunnison than to a swirl of changes in the larger American society — changes that underlie the internal conflicts within the Upper Gunnison basin as well.
All of the West’s chickens (or ducks) are coming to roost along and around the streams of the Upper Gunnison Basin — the Upper Gunnison Knot.
Turning a river into plumbing
The fact that the Upper Gunnison is the last “waterhole” untapped by the major population centers surrounding the Upper Colorado River hardly means that it is a virgin flow in a natural state. Indeed, the valley’s best hope of escaping out-of-basin diversion is the contention that the waters of the Upper Gunnison are so thoroughly used that there is no water left to be diverted.
The first really large appropriation from the Upper Gunnison’s waters was, in fact, an out-of-basin diversion, although the water stayed within the larger Gunnison Basin. In 1905, farmers in the Uncompaghre Valley near Montrose (the next valley west from the Upper Gunnison) began a tunnel from the Black Canyon out to the dry eastern edge of their valley, a tunnel the brand-new Bureau of Reclamation finished for them in 1912. This draws more than 1,000 cubic feet per second out of the Upper Gunnison with a priority right of 1905. During many years in the first third of the century, the Uncompaghre Valley Water Users Association put a “call” on the river for late summer water — a demand that senior downstream rights be honored — that forced junior appropriators in the Upper Gunnison to let the water flow past.
The Bureau of Reclamation tried to relieve this situation in the mid-1930s with a dam at the head of the Taylor River Canyon, backing up a 100,000-acre-foot reservoir into Taylor Park. This was completed in 1941.
This helped the Upper Gunnison farmers somewhat, but at that point, the Taylor ceased to be a natural river in its beautiful canyon. It ran when the Uncompaghre farmers wanted it to, and the rest of the time it was dry except for a few small tributaries below the dam.
Then in the early 1960s the Bureau began a much larger dam project on the Upper Gunnison — the Wayne K. Aspinall unit of the Colorado River Storage Project. The CRSP was a massive program for the beneficial development of all the remaining water in the Upper Colorado River Basin. The Bureau wanted to build four big hydropower projects in the Upper Colorado Basin, then plow the proceeds from power sales back into a host of small water developments for domestic, agricultural and industrial purposes throughout the Basin. Three of the big power projects were built: Glen Canyon Dam on the Colorado’s mainstem, Flaming Gorge Dam on the Green River — and the three-dam Aspinall unit in the canyons of the Upper Gunnison.
The Aspinall Unit (named for western Colorado Congressman Wayne Aspinall, architect of the CRSP legislation) was begun in 1962 and finally completed in 1980: Blue Mesa Dam, Morrow Point Dam, and Crystal Dam.
This was not a popular project in the Upper Gunnison: partly because it destroyed a world-class trout fishery around which a lot of resort development had already been built; and partly because people in the Upper Gunnison feared that, since the Aspinall dams would store all the remaining water from the Upper Gunnison and its tributaries, there would be no water left for any kind of Upper Gunnison development.
This led the Bureau to make some promises that were perhaps not so well written down as they might have been. They promised, for one thing, to replace the lost fishing stream with improved fisheries elsewhere in the Upper Gunnison — a promise that remains largely unfulfilled.
And to alleviate fears about lost development opportunities, the Bureau agreed to “subordinate” its claim to up to 60,000 acre-feet of the water it would store for power generation in Blue Mesa, enabling the Upper Gunnison to consumptively develop that much water at any time in the future with no fear of the Bureau putting a call on it. The Bureau also agreed to help the Upper Gunnison water users in the event of a downstream call from the UVWUA or any other senior downstream user.
An “Upper Gunnison Project,” consisting of half a dozen small reservoirs and a network of canals to distribute the subordination and then some (around 100,000 acre-feet in total), was added to the list of small projects the Bureau planned to fund and build with all its power revenues from the big “cash register” dams. The Upper Gunnison River Water Conservancy District (UGRWCD) came into being in 1959 as the local agent for coördinating development of the Upper Gunnison Project and its water rights. The Knot thickens.
Making plumbing look like a river
Those four dams (Taylor Dam and the three Aspinall Dams) plus the Gunnison Tunnel are the major physical water development structures on the Upper Gunnison. All of the rest of the traditional water development in the Upper Gunnison is much smaller in scale: primarily ditches (some several miles in length) or pipes to divert water for agricultural or municipal uses, and a few small municipal or ranch reservoirs.
But like all manmade physical structures, these dams and diversions were underlaid by less tangible but probably more important legal, political, economic, and cultural structures that change through time — more strands in the Knot. Throughout the 19th century and the first half of the 20th, those societal structures all reflected a kind of relentless material utilitarianism: how can we turn this or that resource to the fulfilling of material human needs and desires?
The Aspinall Unit on the Upper Gunnison best represents that utilitarianism. It’s what the post-war Bureau of Reclamation would like to have done throughout the canyon regions of the whole Colorado River Basin: dams in a kind of stair-step series, each dam backing water up to the base of the next higher dam. Plans were drawn up to do that, down the Green River and its Yampa and White River tributaries, down the Upper Colorado, and all the way down the mainstem through the Grand Canyon.
But in the two decades from the time the Aspinall Unit dams were started until they were done, the nation began to undergo some basic changes in those less tangible cultural structures that underlie the physical structures we build. The dawning of an environmental consciousness was part of the change. Across the nation, but especially in and around the urban centers, the deterioration of natural systems could no longer be ignored by the mid-1960s. When urban rivers became so polluted that one actually caught fire, when Lake Erie went dead, when urban air began to be life-threatening, when the national bird (along with a lot of other birds and animals) went into precipitous chemically-caused decline, when salts began to destroy the productivity of the irrigated fields the nation depended on — when these and many other things began to happen, it became evident that we would have to actively take steps to maintain a livable environment.
This gave rise to a lot of new “legal structure,” in the form of national environmental legislation through the 1960s and 1970s, including the Endangered Species Act (1966, strengthened in 1969 and 1973), the National Environmental Protection Act (1969), the Clean Water Act (1972), and others. More strands woven into the Knot.
BUT THE ENVIRONMENTAL AWAKENING was just part of another, more general cultural change that was having a big impact on places like the Upper Gunnison basin, during the decades the Aspinall Unit was under construction. From the Civil War through World War II, despite programs like the Homestead Act and a general idealization of small-town and farm life, the direction of movement had been consistently from farm and town to the burgeoning cities. At the same time, improving transportation systems — first the train, then the automobile — and increasing general prosperity and leisure had resulted in the growth of tourism and outdoor recreation.
The basic cultural relationship of humans to the natural world changed over a couple of generations, from a relationship based on work, to a relationship based on play and the enjoyment of nature as an alternative to work, especially industrialized work.
By the 1960s Americans were going camping — “roughing it” — with more equipment and luxury than their own grandparents had ever experienced in their daily living.
Then, in the late 1960s, demographers began to notice episodes of “population turnaround.” There were years when the net country-to-city migration was reversing nationwide; more people were leaving the “statistical metropolitan areas” (cities and their suburban regions) than were moving there. And the remaining “pre-urban natives” in places like the Upper Gunnison valley knew exactly where those city people were moving, and what they were doing. Some were “going back to the land” in a romantic agrarian way, but most of them, sooner or later, were moving to places like the Upper Gunnison valley and participating in new economies growing up around tourism, destination resorts, and outdoor recreation.
Not very many were jumping into the traditional extractive industries — mining, logging and industrial agriculture — but that was not necessarily an indication of environmental virtue. The old utilitarianism, in which natural resources were converted into goods, was just being replaced by a “new utilitarianism,” in which natural resources in place were a necessary setting for the local economies.
Looking at the homes, vehicles, and general urban baggage that the new immigrants have brought to the non-urban West, it is hard to say that the modern destination resort is any more “environmentally clean” than traditional mining or logging operations. It may just spread the mess of a swarming population rather than concentrating it the way a mine does.
This change is, however, beginning to have a significant effect on the legal, political, and economic structures underlying the way water is pushed around in the affected parts of the West. Most of these changes stem from the fact that, for people oriented toward the appreciation of natural beauty and outdoor recreation, the best place for water is in the rivers and streams, rather than spread out over the surrounding land — or taken completely out of the watershed, to some distant city. This is partially an environmentalist position: it undeniably alters aquatic and riparian ecosystems to dam rivers or divert the bulk of their water out of stream.
But it is also a utilitarian position with economic rationales. Tourism, resortism, and outdoor recreation all depend on streams and rivers with healthy (or at least healthy-looking) flows in them. River rafting has become an “industrial recreation” that is beginning to rival downhill skiing for popularity in the West. More than 400,000 people went down the Upper Arkansas in rubber rafts last summer, and rafting on the Taylor and Gunnison Rivers is now a major growth industry in the Upper Gunnison.
This changing perception of where a river’s water is most valuable led, statewide in Colorado, to “minimum instream flow” legislation in 1973, whereby no river can be drawn down through diversion beyond a minimum flow necessary “to preserve the natural environment to a reasonable degree.”
More important, but also more vague in terms of tested practice — the old assumption about beneficial uses has been modified. The law now grants that, so long as the water claimed is being controlled in some way by the user, water claims for in-stream uses (for recreation, wildlife, etc.) can be perfected.
A “reform” group in the Upper Gunnison River Water Conservancy went to work on exploiting these changes. In 1975, the Bureau of Reclamation and the Uncompaghre Valley Water Users Association agreed to a plan proposed by the UGRWCD to, as it were, reconstruct the Taylor River. By that plan, the UVWUA could store their Taylor River water, through a crediting system, in Blue Mesa Reservoir, on its way down to the Gunnison Tunnel.
This “1975 Agreement” meant that UVWUA water could be moved from Taylor Reservoir to Blue Mesa on a schedule that kept the Taylor River below the dam running like a river rather than an on-and-off irrigation ditch. This is a complex and somewhat fragile agreement, but its consequences were significant: full restoration of the Taylor River fishery was possible, as well as the beginning of rafting and kayaking operations.
But see how the Knot builds.
The UGRWCD then took the “1975 Agreement” one better. They applied for water rights on a second filling of Taylor Reservoir — meaning that, once the UVWUA’s 100,000 acre-feet-plus had been moved through Taylor Dam to Blue Mesa, the UGRWCD would get to run a second 100,000 acre-feet-plus through the dam “to enhance fishery and recreational uses in the Taylor and Gunnison Rivers above Blue Mesa Reservoir.” The water-law modifications that allowed in-stream uses to be considered “beneficial” made this possible. The dam that had destroyed the river was now the control structure that enabled the river to be restored.
A lot of the leadership in this effort came from Dick Bratton, a savvy Gunnison water lawyer who has been counsel for the UGRWCD since 1961, and has been the closest thing in the valley to a bridge between the old utilitarianism of “get it out of the river and onto the land,” and the kinder and gentler (one hopes) “new utilitarianism” of the in-stream recreational industry. That unique “refill right,” for instream non-traditional beneficial use, was granted in 1990 — and just in time because, across the Continental Divide, the first major assault on the Upper Gunnison was gearing up.
The Metropolis looks over the hill
Through most of the 20th century, growth on the Colorado Front Range — the increasingly homogeneous and unseparated strip of cities from Fort Collins on the north through the Denver-Boulder nexus to Pueblo on the south — has been significantly watered by Colorado River Basin water, but almost all of it has come from the tributaries of the Upper Colorado River, north of the Upper Gunnison.
There are three major diversions: the Colorado-Big Thompson Project which carries water in a tunnel from Grand Lake to the northern end of the Front Range for urban and agricultural purposes in the lower South Platte basin, the Dillon Reservoir-Roberts Tunnel Project which carries water from the Blue River tributary of the Colorado over to the South Platte for the Denver area, and the Frying Pan-Arkansas Project which carries water from the Roaring Fork valley through another tunnel to the Arkansas River basin and the Colorado Springs and Pueblo areas.
There is also an interesting diversion from the Fraser valley (also part of the Upper Colorado basin) to the Denver-Boulder area via the Moffat Tunnel, built first for trains. Historically, transportation systems have tended to follow waterways; but when the steam engine freed transportation from having to follow rivers, western rivers seemed to start going (neither naturally nor easily) where the transportation systems converged.
In that era of what Colorado’s West Slopers call “water grabs” (albeit entirely legal), the Upper Gunnison basin was fortunate in being more or less isolated from Front Range growth by the geographic fact that the Upper Arkansas River valley separates it from the South Platte River and Denver. Diversion over into the Arkansas was, and is, always a possibility, but the Arkansas valley end of the Front Range has been the slowest growing part of the Front Range, with a post-war history of industrial decline.
People in the Upper Gunnison knew of course that this “protected” status would not last forever, as the cities on the Front Range grew ever larger, wealthier and thirstier. In the mid-1980s, an independent group of “water buffaloes” — several retired Bureau of Reclamation engineers and a retired Air Force officer named Dave Miller — drafted up plans for a huge reservoir in Union Park, a large mountain-ringed meadow high in the Taylor River valley, several hundred feet above the Taylor Reservoir. Into this reservoir — which would boast about nine times the capacity of Taylor Reservoir, and be as large as Blue Mesa Reservoir in the Aspinall Unit — would be pumped “surplus” waters during fat water years from most of the Gunnison tributaries on the east side of the Upper Gunnison basin via an intricate plumbing and pumping system. The water would then be available on both sides of the Divide in the lean water years.
Because Miller’s plan seemed to promise a win-win situation for both sides of the Divide there was tentative early interest in the Upper Gunnison as well as along the Front Range. The City of Aurora and Arapahoe County (southeast Denver area) signed on, and the City of Gunnison’s council gave the idea a stamp of approval, believing it would help protect the Upper Gunnison from downriver calls and provide for growth in the valley — a vote that reflected the persisting “old utilitarianism” base in the valley.
IN 1986, MILLER and company filed for conditional rights on water from the Upper Gunnison’s tributaries, but they lacked an actual user for the water. Then in 1988 they sold the Union Park idea to Arapahoe County for $2.2 million. At about that same time, the “new utilitarians” and the environmentalists joined voices in the Upper Gunnison, challenging the Union Park idea.
In 1990, a group of Gunnisonites, led by environmentalist Ralph “Butch” Clark, realty agent Gerald Lain, history professor Duane Vandenbusche, water attorney Pete Klingsmith and others, organized POWER — “People Opposed to Water Export Raids” — around the slogan, “Not One Drop.” Shortly after this, the City of Gunnison withdrew its support for the Union Park Project, and Miller’s hopes for a “win-win project” disappeared in the rapid descent into the usual us-versus-them, East Slope-versus-West Slope, country-versus-city acrimonies of standard Colorado politics. The City of Aurora dropped out of the fray soon after that, leaving Arapahoe County as the major applicant.
In 1990, the water court held hearings on Arapahoe County’s application to “divert, store and export waters” for the Union Park Project. A host of opponents lined up: the Upper Gunnison River Water Conservancy District, its “parent” the Colorado River Water Conservancy District, the City of Gunnison, several Taylor River homeowner associations, the High Country Citizens Alliance (an environmental organization), the Spann Ranches and the Trampe Ranches (owners of major upvalley irrigation rights), several wildlife and angling organizations — and the United States of America, to protect its still somewhat vaguely articulated rights for the Aspinall Unit, and some unquantified rights in the Black Canyon National Monument (watch for this sleeper).
The issue was — and may be for some time — water availability. The noble bravado of “Not One Drop” notwithstanding, conditional rights to water not otherwise committed to a beneficial use cannot be denied under Colorado law. Whether those rights could ever actually be developed in compliance with existing environmental legislation is another issue entirely, but the first step was to try to untangle the knot of decreed rights for consumptive uses, non-consumptive uses, consumptive uses that are really partially non-consumptive, existing conditional rights, et cetera, and match all of that with the basin’s erratic record of water supply.
A lot of attention was paid to “modeling” processes. Arapahoe County brought a sophisticated computer model that allegedly showed the cumulative water available with various supply input and use output scenarios. The opposers used a more conventional accounting process based on measured annual flows and the sums of decreed water rights.
In 1991, after weighing all of the evidence, District Judge Robert Brown decreed that there was not enough water in the Upper Gunnison basin for the Union Park Project. Arapahoe County promptly appealed the decision to the Colorado Supreme Court, arguing (among other lesser things) that the Judge had not correctly interpreted the Bureau of Reclamation’s subordination of 60,000 acre-feet of water for use in the Upper Gunnison above the Aspinall Unit dams. Judge Brown had upheld the opposers’ claim that water was to be used within the Upper Gunnison basin.
But Arapahoe County claimed that, since the Union Park reservoir would be in the Upper Gunnison basin, it should count as an in-basin use (even though the majority of the water would be used on the Front Range). The Supreme Court agreed with the applicant, on that and a few other points, and remanded the application back to Judge Brown for rehearing on those points.
So in the summer of 1997, Arapahoe County’s phalanx of attorneys came over the Divide again to face the same basic army of opposers, minus the Trampe Ranches and the High Country Citizens Alliance (the environment was not permitted to participate) — but with the addition of State of Colorado water engineers, who had their opinions on what the Bureau’s subordination meant and on how best to model the water situation.
On consideration of the new evidence and arguments presented, Judge Brown found no reason to change his previous findings significantly. He concluded that when the Bureau subordinated its claim to a portion of the water in the Aspinall Unit reservoirs for use in the Upper Gunnison basin above the reservoirs, the water had to be used in the basin, not just stored there for use anywhere else in the state. He again ruled, in 1998, that there was not sufficient water for Union Park — and Arapahoe County again filed an appeal to the Supreme Court.
At this point, Arapahoe County decided that it had carried the ball far enough, having invested more than three million dollars in what pessimists were calling a dry hole. But there were other Front Range entities ready and willing to pick up the ball if Arapahoe would file an appeal. A consortium of water districts mostly from the fast-growing counties south and east of Denver, led by Chuck Jaeger of Parker’s water district, are now paying the bills for Arapahoe’s appeal in the Supreme Court.
The new appeal again challenges Judge Brown’s evaluation of the Bureau’s subordination, but it also challenges the Bureau’s non-consumptive rights to Aspinall Unit waters for hydropower generation. The appellants claim that, since the state constitution gives domestic uses precedence over manufacturing uses, Union Park should have precedence over the Aspinall Unit power plants (never mind that the Unit’s peaking power is mostly used domestically). They also believe that the Judge’s decision has “allowed exaggerations” on some of the Gunnison basin decreed rights, including the UGRWCD’s refill rights on Taylor Reservoir, and some of the agricultural rights which give up to 20-plus acre-feet of water per irrigated acre of hay field — three or four times what is actually needed to grow an acre of hay.
So that appeal is pending.
But all is not quiet on the Upper Gunnison front. For one thing, the aforementioned Upper Gunnison Project has come back to haunt the valley.
George Sibley teaches at Western State College in Gunnison, and has lived in the Upper Gunnison drainage for three decades. Stay tuned for “The Knot Tightens, or, How do you keep water down on the ranch after it has been noticed by the big city”.
