Essay by Ed Quillen
Water – June 2003 – Colorado Central Magazine
EARLY IN APRIL, the state and federal governments announced that they had come to an agreement concerning river flows through the Black Canyon of the Gunnison National Park. The feds would settle for less than they might have been able to claim under state law. That could mean that water in the upper Gunnison basin has become available for diversion to the Eastern Slope and Front Range. Or it could mean nothing of the sort.
What it does mean is that a big water battle is likely to start heating up almost any day now. Gunnison County has a “not one drop” policy concerning water exports, while Front Range interests will argue that water in the Gunnison Basin should serve the entire state, not just the Western Slope.
As with all matters of Colorado water, it’s a complicated issue. But we can start with a few facts. One is that Colorado is, on average, a desert. Although some spots are obviously wetter than others, our state overall averages only 17 inches of precipitation a year, and regular agriculture requires at least 20.
The Continental Divide winds through the mountains of Colorado. In general, water that lands on the Eastern Slope flows to the Atlantic Ocean, via the Platte, Arkansas, Rio Grande, and their tributaries. Water on the Western Slope flows into the Pacific Ocean, via the Colorado River and its many tributaries — the Gunnison is the largest tributary in Colorado.
On the Eastern Slope, most of the population lives in a belt a few miles east of the Front Range. This strip extends along Interstate 25 from Fort Collins to Pueblo, and it has about 80% of Colorado’s population. But it has natural access to only 20% of Colorado’s water supply.
By contrast, the Western Slope has only 10% of the state’s population, and about 80% of the state’s water.
Colorado could have tried moving the people to the water, perhaps, but what evolved during the 20th century, as the Front Range population grew, was moving the water to the people with transmountain diversions. Collection and storage systems were built on the Western Slope; the water was conveyed through a tunnel to the Eastern Slope, where it was distributed to farms and cities.
There was a logic to this. The South Platte valley has some of the most productive agriculture in the United States, and providing more water meant that Colorado was better able to feed itself. The relatively unpopulated Western Slope didn’t really have a “beneficial use” for much of the water that fell on it, and so why not move the water to where it would do Colorado the most good?
So there was the Colorado-Big Thompson Project of 1937, taking about 300,000 acre-feet a year from the Colorado River near its headwaters at Grand Lake, and transporting it through the 12.8-mile Alva Adams tunnel under Rocky Mountain National Park to serve irrigators and cities along the South Platte, clear to the Nebraska line.
The next drainage to the south, one that sits almost due west of Denver where the Continental Divide is a narrow ridge, is the Fraser River. Denver tapped it with the Moffat Tunnel pioneer bore in 1937. Next comes the Williams Fork, also tapped by Denver. Then the Blue River, which was tapped by Denver with Dillon Reservoir and the Roberts Tunnel in 1962.
And then, well, we run out of convenient places to tap. The Continental Divide swings west, meaning greater transport distances. The east side of the Divide is no longer South Platte drainage, but Arkansas drainage. The Arkansas valley in Colorado is poorer and less populated, and thus less able to pay for water projects than the South Platte valley.
So there are only two major diversions from the Western Slope into the Arkansas: the Boustead Tunnel, part of the Fryingpan-Arkansas project (about 70,000 acre-feet a year), and the Twin Lakes Tunnel, a private development (about 30,000 acre-feet a year).
Both of those get their water from tributaries of the main stem of the Colorado River in Colorado (which was known as the Grand until 1922, and these discussions would be simpler if it were still the Grand). That stem is pretty well tapped out now.
ON THE WET WESTERN SLOPE, the next basin to the south is the Gunnison. Given what else has happened, the question that comes to mind is “Why hasn’t it been tapped before by the Eastern Slope?”
For one thing, it sits about 150 miles from the state’s population centers. Water that got across the Divide would not arrive on the South Platte that has most of the state’s population, but on the Arkansas, and getting it to the Platte would mean conveying it across yet another mountain range.
Just getting it to the Arkansas would be expensive, on account of the economics of tunnels. You want the tunnel’s elevation as low as possible, so that you use cheap gravity (as opposed to expensive pumps) to collect a lot of water above the tunnel intake. But the lower the tunnel, the longer it is, especially when the mountain range in question is the immense Sawatch Range, rather than the relatively narrow hog-back section of the Front Range where the Moffat Tunnel was bored.
[Gunnison drainage map]
Add those factors together, and it becomes clear that for decades, there were cheaper places to develop water in Colorado. The north part of the Colorado River drainage was closer to the metropolitan area, abutted the South Platte drainage where the demand was, and involved shorter tunnels under narrower mountain ranges. In other words, if you could develop water for $25 an acre-foot from the Blue River, why pay $250 to develop it from the Gunnison?
Now the water isn’t available to the north; those Colorado River tributaries have little left to give. Demand continues to grow along the Front Range — especially during a drought. People are willing to pay more for water. Put those factors together, and you can see why Colorado’s water developers are now casting a covetous eye on the Gunnison.
To date, I’ve found only two diversions from the Gunnison. Only one actually puts water on the Eastern Slope. It’s the Larkspur Ditch, which collects water on the western side of Mt. Ouray. You can see it carry that water across the Continental Divide at Marshall Pass, where it flows down the Arkansas to serve farmers east of Pueblo. But in the general scheme of things, it’s hardly a major diversion — only 385 acre-feet a year.
The other diversion from the Gunnison is much bigger, although one might argue that it’s not exactly a diversion from the Gunnison, since it puts water in a tributary of the Gunnison.
That’s the Gunnison-Uncompahgre Project. Almost a century old, it was one of the first projects of the fledgling U.S. Bureau of Reclamation. It uses a 5.8-mile tunnel to convey about 365,000 acre-feet a year from the upper Black Canyon to the Uncompahgre Valley, where it irrigates farms and orchards. The return flow goes into the Uncompahgre River, which joins the Gunnison at Delta.
The argument for it then was that the Uncompahgre was a valley with sunshine and good soil, but not enough water — water that wouldn’t do anybody much good if it just roared down a dark and narrow canyon.
To make sure that there would be enough water for the Uncompahgre project, the Bureau of Reclamation built Taylor Park Reservoir in 1937. The idea was to fill it in the spring, then release the water down the river to the tunnel inlet in late summer for the irrigators. That’s still a big part of its operation, though it is more complicated now.
Then there are the three big dams and reservoirs on the river, Blue Mesa, Morrow Point, and Crystal, which lie between the city of Gunnison and the Black Canyon. Together, they are known as the Aspinall Unit.
They all store water and generate electricity. They were built in the 1960s and 70s by the Bureau of Reclamation as part of the Colorado River Storage Project. The plan was to sell electricity to pay for reservoirs that would store water to insure that Colorado could make good on its obligations to downstream states.
TO EXPLAIN THAT, we need to go back to 1922 and the Colorado River Compact. Back then, Los Angeles wanted a dam on the Colorado River so it could build an aqueduct to transport the water across 250 miles of desert. Los Angeles couldn’t afford to do this on its own, though; it needed federal help.
But upstream states were worried. Under the doctrine of prior appropriation, if California put the Colorado River’s water to “beneficial use” before the upper states grew enough to start needing water from the river, California could claim the whole flow. As things were, Colorado and Utah and Wyoming and New Mexico might never be able to use water that fell on their soil; therefore their congressional delegations blocked any federal assistance to Los Angeles.
But that didn’t help thirsty Los Angeles, so an agreement was reached among the states. The river was divided at Lee’s Ferry, Ariz. (which is about a dozen miles downstream from Glen Canyon Dam), and the river’s flow was calculated to be an average 16 million acre-feet a year. (As it turns out, however, that estimate was made during very wet years). Under the agreement, Mexico was promised a million acre-feet. Of what was left, upstream states got half, and downstream states got half — each share was 7.5 million acre-feet a year. The upper basin was obligated to deliver the Lower Basin’s share, but the Lower Basin couldn’t claim any more than its share. That was the compromise that allowed the construction of Hoover Dam and the Los Angeles Aqueduct.
It was left to each basin, upper and lower, to work out a deal internally. In 1948, Colorado came to an agreement with its fellow Upper Basin states (Wyoming, Utah, and New Mexico), based on how much they contributed to the flow. Colorado ended up with 51.75% of the Upper Basin’s 7.5 million acre feet, or about 3.9 million acre feet.
ACCORDING TO THE Colorado Water Conservation Board, our state consumed about 2.6 million acre-feet of Western Slope water on average from 1981 to 1985 (newer numbers are hard to come by). That leaves about 1.3 million acre-feet that Colorado has a legal right to. That’s what the politicians and water developers are talking about when they say that Colorado is losing its water to downstream states.
And since the Gunnison is the major untapped tributary of the Colorado in Colorado (it contributes about 1.8 million acre-feet to the Colorado’s flow at the state line), it’s a logical place to start looking for surplus water.
One complication in this reckoning is that the annual average flow of the Colorado River is probably closer to 13.5 million acre-feet than to 16 million. So there might not be nearly as much water available as was assumed in 1922; deduct Mexico’s guarantee, and you’re left with 51.75% of 6 million, which works out to 3.1 million acre-feet — and if we’re already using 2.6 million, that leaves only 500,000 acre-feet for development.
Another complication was the federal reserved rights in the Black Canyon of the Gunnison National Monument. Until that 1933 water right got squared away, nobody could be sure how much water might be available for diversion or development in the Upper Gunnison.
At the heart of this is the “Winters Doctrine.” It is a 1908 federal court case which holds that when the federal government reserves public land for a certain purpose, then it also claims enough water under state law to serve that purpose. The date of the claim (very important under Colorado’s “first in time, first in right” Doctrine of Prior Appropriation) is the date of the reservation.
It came out of a Montana water case involving an Indian reservation, but the federal government has reserved land for many other purposes over the years — national forests, for instance, or military bases. The relevant reservation here was President Herbert C. Hoover’s 1933 proclamation of Black Canyon of the Gunnison National Monument, which became Black Canyon of the Gunnison National Park in 1999.
That means there is a 1933 water right for water sufficient to serve the purposes of the monument. One purpose of the monument was to preserve the plants and animals there — that is, the “natural state” of the canyon. Under the Winters Doctrine, the feds have to go through state water court to get this water right recognized, and the Department of the Interior filed for it in 1972. The water right was granted in 1978, but nobody said how much water would be involved; the court left that for future determination.
DETERMINING JUST HOW MUCH water the Park needs to fulfill its purposes is a process called “quantification,” and it’s not a simple process for Black Canyon. In days of yore, back when the Monument was proclaimed, spring floods roared through the canyon, sweeping away sandbanks and vegetation.
But with three dams upstream now, the river flows at a relatively steady rate through the canyon, and so sandbars have developed, along with trees — stuff that wouldn’t be there in a “natural state.”
So in theory the feds could claim enough water, with a 1933 priority date, to provide those old-fashioned annual floods. That’s pretty much what happened in January of 2001, just before the Clinton Administration left office.
Just about everybody who matters on the Western Slope opposed the filing; it attracted nearly 400 legal objections. Greg Walcher, director of the Colorado Department of Natural Resources, said the feds were “basically asking for the entire spring run-off of the upper Gunnison, every year.” This could have caused floods in Delta and Grand Junction, he said.
Further, requiring that much water, with a 1933 priority date, could cause some serious hurt to the irrigators upstream from the canyon and the Aspinall Unit dams. “About a quarter of our irrigators in the upper basin have rights that are junior to 1933,” according to Kathleen Curry, manager of the Upper Gunnison River Water Conservancy District.
Lots of litigation loomed if the feds pursued that claim. But the federal government changed parties and policies after George W. Bush was inaugurated in January, 2001. The Clinton Administration had an environmental constituency that believed in protecting national parks; the Bush Administration had different priorities. Last fall, Walcher and other state officials began negotiating with the Interior Department, headed by Gale Norton, former attorney general of Colorado.
The result was the agreement you heard about in early April. The feds would drop their claim to immense spring flows through the Black Canyon. Instead, there would be a 300-cfs minimum year-round in-stream flow with a 1933 priority date, along with a 2003 right to some flooding flows in wet years.
“This still flushes the canyon from time to time,” Walcher told me, “and even before the dams were built, it didn’t get scoured every year. So we’ve protected the canyon’s environment while also protecting Colorado water users.”
But if much of the water stored upstream from Black Canyon is no longer required for the canyon, then is it now available for diversion to the Eastern Slope?
THAT’S A BILLION-DOLLAR QUESTION. Curry points out that the state negotiated with the feds in secret, without involving other parties who had filed objections to the Park Service claim. “I have the impression that the state wanted to settle the Gunnison question so that the water would be available for diversion to the Eastern Slope,” she said.
I mentioned her concern when I talked to Walcher. He said that wasn’t the case, that the state government was not trying to simplify matters for anyone trying to divert water from the upper Gunnison. He said Gov. Bill Owens had campaigned against such diversions in 1998, and none would be built, “as long as I am in this job and Bill Owens is governor.”
Colorado may be the only place in the world where it is necessary to distinguish between “paper water” and “wet water.” We can construct a paper world where the State of Colorado has the rights to a million acre-feet a year (enough for about 4 million more residents) of water from the Colorado River, of which the Gunnison is a major tributary. And in that paper world, this paper water could be put to “beneficial use” elsewhere in the state, assuming somebody wants to pay for the immense amount of work it would take.
The U.S. Bureau of Reclamation looked at that in 1948 (see the following sidebar). More recently, it’s been the obsession of Dave Miller, a water developer who runs an outfit called Natural Energy Resources Co. in Palmer Lake.
[Union Park Project]
Miller has his eyes on Union Park, a glacial bowl near timberline a mile or two east of Taylor Park Reservoir. He’d like to build a big reservoir in Union Park — somewhere around a million acre-feet — and run a tunnel under the Sawatch Range to a siphon under the Arkansas north of Buena Vista. The water would cross Trout Creek Pass to South Park and Antero Reservoir, where there’s plumbing to send it to either Colorado Springs or the Denver suburbs.
Initially, it would gather water from the Taylor River basin, but it could be expanded to reach Blue Mesa Reservoir west of Gunnison, where Miller argues that there is at least 240,000 acre-feet, in an average year, available for use anywhere in Colorado.
This was originally known as the Union Park project; Miller is now promoting it as the Central Colorado Project. He points out that it is an off-stream site, so it won’t trash any river valleys. Further, its central location means that it could serve most Colorado basins, including the Rio Grande. And at an elevation above 10,000 feet, evaporation losses would be minimal.
In 1986, he filed for this project in state water court in Montrose, and in 1988 he sold his interest to Arapahoe County, (but continued to promote the project).
IN THE BEGINNING, the City of Gunnison was also interested, since Union Park offered some upstream storage, even if it also proposed to take up to 330,000 acre-feet a year out of the basin. Local activists, however, who ranged from hard-core environmentalists to fifth-generation ranchers, were against the project; they formed POWER (People Opposed to Water Export Raids) and quickly changed Gunnison’s political climate. Local candidates who did not support the “Not One Drop” anti-export policy did not win elections.
Local governments hired lawyers to oppose the water filings by Arapahoe County when it went to water court. It was a long battle, complete with an appeal to the state supreme court and a new trial in local water court, but the outcome was that Union Park lost.
The gist of the final court decision was that there was not 240,000 acre-feet of unappropriated water in the Gunnison Basin. Almost every drop was already being put to beneficial use, whether it was irrigating a hay meadow with an 1880 water right, or generating electricity with a 1957 water right.
There might be up to 20,000 acre-feet of available water, the court finally concluded. But that’s not enough water to pay for the canals, pipelines, and tunnels required to get that water to the Front Range where there’s a need for it.
But that was before the Black Canyon settlement. Walcher told me that it was his understanding that any surplus spring flows in the Gunnison would be claimed by Black Canyon with a 2003 priority date. And thus if further water were developed in that basin in the future, it would have a later priority date — so late as to be worthless.
As it is, in the dry year of 2002, the upper Gunnison ran out of water; the Uncompahgre users had to put in a call to get their water, and even at that, they only got 60% of their normal flow.
SO WAS ALL THAT PUBLICITY about the Gunnison being one of “America’s Most Endangered Rivers” just a scare tactic?
Not exactly. The big kahuna of water rights in the basin is the Bureau of Reclamation’s 1957 right to about 300,000 acre-feet for the Aspinall Project. Of that, 60,000 is set aside for the Upper Basin (called “subordination” in Colowaterese dialect), and presumably could not be diverted outside the basin.
That leaves 240,000 acre-feet as potential “marketable yield” which Reclamation could presumably sell for diversion, and that’s enough water for about a million people. But the Bureau also needs the water in the basin, flowing west, for a variety of purposes.
For one, Bureau construction of reservoirs elsewhere on the Western Slope has reduced flows into the Colorado, where endangered-fish recovery efforts are underway. Aspinall Unit releases are vital.
For another, the Bureau needs to generate electricity to pay the bills, and not just at the Aspinall Unit but downstream at Glen Canyon and Hoover dams. Sending the water east would not only reduce power-generation and consequent revenues, but it would also require electricity for pumping. Compensating for the lost revenues could add substantially to the costs.
If some development-minded Commissioner of Reclamation decided to sell this water to the Front Range, there would be a host of litigation, all arguing that the Bureau was ignoring its other obligations.
So Blue Mesa Reservoir, even if it really has 240,000 wet acre-feet of “marketable yield” (Walcher doesn’t think it does, and neither did the water judge), is not going to be a cheap or easy place to get water for the Front Range.
Another course for the Front Range might be even more expensive. The cities could start buying Gunnison County ranches with good water rights (some ranches just below Crested Butte have 19th-century rights to about 300 cfs), and once enough water rights were assembled, build the diversion and storage systems. That’s what happened in South Park and Middle Park when the Denver Water Board went shopping decades ago.
“They could do that,” Curry said when I asked, “and there wouldn’t be much we [the conservancy district] could do to stop that.” But it would likely be very expensive — rustic mountain land commands a much higher price today than it did in the 1920s and ’30s.
THEN THERE WOULD BE the matter of determining “consumptive use.” Much of the water used to irrigate eventually seeps back to the river (the “return flow”). The water that doesn’t return is the “consumptive use,” and that’s all that a diverter could take under state law, because taking more would harm the downstream users who had come to rely on the return flows.
Also there would be proceedings in water court to change the use from agricultural to domestic. A “change in point of diversion,” another legal proceeding, might also be required. Plus, a right-of-way would have to be acquired for transporting the water — one that would almost certainly cross federal lands, thus triggering a full-scale environmental review.
Proposals for trans-basin diversions have gained popularity during our recent drought — even though Western Slope reservoirs sat empty last summer. Without sufficient precipitation, there simply isn’t enough water available to store or transport, so new reservoirs and pipelines won’t necessarily help matters during serious drought years.
But all of this water development talk isn’t merely about water, it’s about money. Water can provide more money and trade for Colorado — along with more people, businesses, manufacturing plants, suburbs, housing developments, and thirsty landscapes to suffer through the next drought — if you can just get more water to the Eastern Slope.
Getting water from the Gunnison River to the Front Range is not a cheap or easy matter, or else it would have been done years ago, and it’s not going to get any easier or cheaper in the imaginable future. Just about any other conceivable water source — ground water, conservation, leasing agricultural water — would cost less.
But as Marc Reisner observed in his 1986 masterpiece, Cadillac Desert, “in times of drought, reason is the first casualty.”
Our legislature responded to our recent drought by agreeing to put a measure on the ballot. If we voters approve, it would allow the issuing of up to $2 billion in bonds to finance new water projects. Put that kind of money on the table, and all sorts of things start to look possible.
And that, of course, is the time to be most wary.
— Ed Quillen