Court drains '03 Black Canyon deal
Decision a big win for groups fighting to protect resource
Michelle Burkhart
Originally published 2006-09-21



A monumental court decision has re-opened a chapter of the Black Canyon of the Gunnison water rights battle.
Last week, U.S. District Judge Clarence Brimmer issued a ruling that
negates a behind-closed-doors agreement struck in 2003 between the
federal Department of Interior and the state of Colorado.
That agreement threatened to downsize the Black Canyon of the Gunnison
National Park's original proposal for water rights, and, critics
claimed, would have left the park with scraps after all other uses —
including a potential trans-basin diversion.
Brimmer's ruling will give stakeholders a place at the table to discuss
how water rights for the canyon should be resolved. That is footing
that many stakeholders feel was unjustly swept away in the 2003
agreement.
Some believe the decision also decreases the likelihood of a
trans-basin diversion, and it gives the National Park Service a second
chance to claim water rights for the canyon's ecological health and
endangered fish.
This ruling has left the plaintiffs jubilant.
"We get another chance to craft a solution that protects the river and
the park, as well as historic and future water users within the
Gunnison Basin," said Wendy McDermott, executive director of High
Country Citizens' Alliance, one of the plaintiffs in the case.
“(The) decision is a victory for the thousands who visit Black Canyon
National Park annually, and for all Americans,” said Libby Fayad,
general counsel for the National Parks Conservation Association (NPCA),
another one of the plaintiffs.
Other plaintiffs to the case included Western Colorado Congress, and
Western Slope Environmental Resource Council, Trout Unlimited,
Environmental Defense and the Wilderness Society.
The Upper Gunnison River Water Conservancy District did not oppose the agreement.
Judge Brimmer ruled the 2003 agreement invalid largely because it did
not allow for public participation as required by the National
Environmental Policy Act (NEPA).
"A permanent relinquishment of a water right with a 1933 priority date
for such a scientifically, ecologically and historically important
national park must be viewed as a major action requiring compliance
with NEPA," Brimmer stated in the court document.
He went on to say that such a significant decision "must be made in
public view and not behind closed doors with the public's interest in
mind."

Layers of history
The Black Canyon water case dates back to 1933, when the federal
government preserved the canyon as a national monument and reserved
Gunnison River water for the preservation of the monument.
The Department of the Interior, however, never sought to quantify its
right to water flowing through the canyon until 2001. At that time, it
made a proposal that closely mirrored the natural water flows that
historically swept through the canyon. The Park Service hoped that this
would help return the canyon to a more natural state.
But the state of Colorado opposed the 2001 quantification proposal out
of fear that huge water rights for the canyon could curtail future
water rights upstream.
There were nearly 400 objectors in all, including more than 100 from
the Upper Gunnison because the 2001 application could have curtailed
around 75 percent of the water rights held by Gunnison Basin water
users.
A subordination agreement was crafted by the Dept. of Interior to
protect those historical local uses – the vast majority of which
were for agricultural purposes – but in a rush to appease the state,
Secretary of the Interior Gale Norton announced the 2003 agreement.
That agreement was quickly challenged by a lawsuit, which charged that
the 2003 deal violated a number of federal laws — mostly aimed at
protecting the environment.
Brimmer agreed with the charges.
The 2003 agreement is in "direct contravention of the National Park
Service Organic Act, the Black Canyon Act and the Wilderness Act,"
Brimmer stated in the court decision. "(The agreement was a) means to
deprive the National Park Service of ever exercising a right to peak
and shoulder flows of the Gunnison River."
The Upper Gunnison board has not yet met to discuss the recent
decision, but several members have expressed gratitude for the
opportunity to let the public participate in the decision.  

A place at the table
The ruling, however, does not mean that all the dust has settled. There
is always the possibility that the state or federal government will
appeal.
James Doyle, a spokesman with the National Park Service, said that the
federal government hasn't decided whether to appeal this early in the
game.
"It was a pretty clear judicial decision," he said. "It kind of puts us
back to square one and we're investigating all over our options."
Even if there is no appeal, there are questions to be answered, such as how the park's water rights will be quantified.
The stakeholders, including the Bureau of Reclamation (BOR); the NPS;
the U.S. Fish and Wildlife Service; the state of Colorado; individual
water-users, such as ranchers; environmentalists; and power interests
will need to work out a compromise on the contentious issue.
Some possible solutions that stakeholders are already talking about
include making the NPS priority date for water rights equal to the
Aspinall Unit 1957 priority date.
If this turns out to be the case, a performance contract could be
struck between the BOR and the Park Service that could dictate how
water would be delivered to the park.
Another possibility would be to make the park's water right one day
senior to the Aspinall Unit so that it is not subject to the Aspinall's
water rights but would be subordinate to water users before 1957.
Or, the Park Service could assert its 1933 priority date and then enter into negotiations with water users with junior rights.
Deciding on one of these options or another one is probably years out.
But many stakeholders are hopeful that through public discussions a
balanced agreement can be struck that takes the canyon ecosystem,
endangered fish, and historic and future water-users within the basin
into consideration — while also putting a trans-basin diversion out of
question.
"All the interests can and should get to the table and have a public
dialogue there," said Bart Miller, an attorney with Western Resource
Advocates, who represented the plaintiff groups for the case. "Public
dialogue and discussion is essential for having a final answer to this."