The Black Canyon ~ High and Dry?
Over millions of years, the Gunnison River carved what is known as the Black Canyon. Narrow openings, sheer jagged walls and depths over 2000 ft. make this canyon unique – a true national treasure. Established in 1933 as a national monument and in 1999 a national park, the Black Canyon hosts a thrilling whitewater experience for professional boaters and is home to a “Gold Medal” trout fishery, bighorn sheep, river otter and eagles as well as many other plants and animals. This spectacular landscape is federally protected “for the preservation of the spectacular gorges and additional features of scenic, scientific and educational interest.”
Although beautiful and partially protected, the Gunnison River is not exactly pristine. Once unobstructed, the Gunnison is now regulated by the Bureau of Reclamation’s Aspinall Unit which consists of three dams – Blue Mesa, Morrow & Crystal. These dams have severely altered the Gunnison’s natural flow, and the reservoirs behind them have inundated more than forty miles of prime native trout waters. Today, there exists more regulated control of the river’s water for irrigation & hydropower generation. Although Aspinall Unit is charged with protecting fish and wildlife and providing recreational opportunities, dam releases have done the reverse. Instead, the natural hydrograph has been dramatically altered with virtually no peak spring flows and prolonged higher flows in the late summer, fall and even at times in the winter.
There is indeed a tangled history surrounding Black Canyon water rights, but one thing is certain, the Gunnison River is the very heart of the park. When the United States specifically withdraws public lands for a particular purpose, such as a national park or monument, those lands are entitled to water rights, called federal reserved water rights. These rights allow federal land management agencies to protect the rivers flowing across federal public lands. In 1978, the United States was awarded a federal reserved water right by a Colorado Water Court. The court found that “The purpose of the Black Canyon of the Gunnison National Monument is to conserve and maintain in an unimpaired condition the scenic, aesthetic, natural and historic objects of the monument, as well as the wildlife therein, in order that the monument might provide a source of recreation and enjoyment for all generations of citizens of the United States.” At this time, the court did not specify the amount, but instead instructed the United States to file an application to quantify the amounts of water necessary to fulfill the monument’s purpose.
In January 2001, the Department of Interior (DOI) opened proceedings to quantify the amount needed to protect the park. Supported by over ten years of scientific research and a list of fifteen scientific articles, the DOI in its Quantification Application claimed year-round base flows of 300 cubic feet per second (cfs) and higher peak & shoulder flows as they related to the natural spring run-off. These flows would more closely mimic the natural hydrograph that existed pre-dam. The application paid particular attention to the importance of peak & shoulder flows. It stated that peak flows would “control riparian vegetation, entrain and transport sediment through the canyon, serve as spawning cues for fish, remove sediment from spawning beds, maintain channel forming processes, and enhance visitor experience by contributing to the sights and sound of the Gunnison River.” All of these are equally important and necessary in upholding the purposes of the park. Due to the strong interest in the ecological health of the Black Canyon and to the importance of keeping water in the Gunnison Basin, High Country Citizens’ Alliance became a party to the proceedings. HCCA is represented by Western Resource Advocates (formerly the Land and Water Fund of the Rockies) along with Environmental Defense, The Wilderness Society, Western Colorado Congress and Western Slope Environmental Resource Council.
Substantial Weakening of Federal Protection
On April 2, 2003, an agreement was signed between the DOI and the Colorado Department of Natural Resources at a press conference in Denver. Both agencies claimed that this settlement agreement puts to rest a decades-old debate over Black Canyon water rights. The agencies heralded it as “historic” and a “mile-stone” of cooperation between federal and state entities; however, this agreement virtually abandons federal protection for the Gunnison River through the Black Canyon. The agreement establishes a water right with a 1933 priority date for baseflows of 300cfs or natural flows, whichever is less, and that the Colorado Water Conservation Board (CWCB) would seek to appropriate a water right with a 2003 priority date for peak flows through the state’s instream flow program.
There are significant problems associated with the settlement agreement. The original Quantification Application contained a full explanation of the needs for not only baseflows but also peak & shoulder flows to meet the full range of park purposes. But now there’s been an abrupt change in position by the United States without any legal or scientific justification of whether the agreement would meet park purposes as determined in 1978. The United States has yet to explain its departure from the Quantification Application. It appears to be more of a political move than one based on science.
Through federal legislation, Congress has made it clear that the highest standard of protection must be provided for national parks and monuments. Yet the United States is abandoning almost all of their reserved water right, which would protect the park for present and future generations. Instead of asserting its right to a quantity of water to serve the broad purposes of the Park, the United States is resting the park’s fate on a new 2003 CWCB instream flow right for peak flows. This water right would be junior to current and futures uses of the Aspinall Unit, including massive diversions to the Front Range. In May 2003, the CWCB voted to appropriate a 2003 right to peak flows for the park, BUT this would only be effective in years that Blue Mesa is expected to “fill and spill,” approximately once in a decade. This CWCB flow right would be much smaller and less frequent than what was previously proclaimed to be necessary to protect the natural environment of the park. The Settlement Agreement, if retained in its current form, would eliminate the United States’ ability to provide necessary peak & shoulder flows in the majority of years. And the baseflows, the small right the United States has retained, are inadequate. Flows of 300cfs (or less) are considered the absolute emergency minimum according to a research paper by fisheries expert Professor Jack Stanford. All of this is an incredible problem because it imposes severe drought conditions as an average condition in the canyon.
Black Canyon Water Rights Decree Signed after 30 Years of Dispute!
After 30 years of dispute, the Black Canyon Water Rights Decree was signed by Judge Steven Patrick on December 31, 2008 which resolved one of Colorado’s most contentious water rights battles. The water court entered a decree formally adopting an agreement between 60 parties including the United States, conservationists, water users and the State of Colorado that protect water rights in Black Canyon of the Gunnison National Park. HCCA was a party to a 7-year lawsuit during which time we served as strong advocates for Gunnison Basin water interests and the natural ecology of Black Canyon National Park. HCCA was instrumental in negotiating a water right that closely mimics the natural water flows that historically swept through the canyon thus protecting this mighty riverine ecosystem. During the settlement negotiations and throughout the case HCCA was represented by the public interest law firm Western Resource Advocates with Bart Miller as lead counsel along with pro-bono representation from the Denver office of Hogan and Hartson. HCCA is grateful for their capable guidance. HCCA also appreciates the steadfast support of our many partner conservation organizations in the Black Canyon effort.