It's
hard to summarize such a complex issue as water in
Colo.
Below is an effort pertaining to the Gunnison River. - Mike
PS-
Documentation available.
Let's
start with an excerpt from the Nat. Park Service visitor guide:
(underlines
added for emphasis)
"How much water does a river need to survive? How much water do
fish
and aquatic insects require? How much water is needed to continue carving
the
Black Canyon?
"Studies show that flows that mimic natural river conditions are
needed
to
restore ecosystem processes and maintain natural landscapes. Upstream
reservoirs
have decreased the amount and frequency of floods and increased
summer
and winter low flows.
The elimination of these scouring flows has
increased
the number of debris fans and gravel bars. These sediment bars have
become
more stable and now support more permanent vegetation, which didn't
exist
historically, in the natural landscape.
"In 1978, the Colorado Water Court awarded the United States a 1933
water
right to the Gunnison River through Black Canyon of the Gunnison Nat.
Park.
The court did not specify an amount of water associated with this right,
but
directed the National Park Service(NPS) to determine the amount necessary
to
protect park resources.(quantify)
The NPS is seeking a negotiated quantity of
water,
particularly with a regular peak flow within the canyon. The NPS believes
the
quantity is important to maintain natural life and to restore the character of
the
canyon,
which impressed locals and visitors prior to 1933 enough to seek
legislation
to protect it.
"The NPS recognizes that the Gunnison River provides water to
growing
populations, and development throughout Colorado and the West;
hydroelectric
power; threatened and endangered fish species; agriculture;
recreational
boating; and the needs of local communities. Rather than engage
in
an extensive court battle, the NPS is currently attempting to negotiate a
settlement
of the Black Canyon water right with all interested parties."
Now for some facts:
In 1922, the Colorado River Storage project was envisioned to provide
for
the comprehensive development of the Upper Colorado River Basin, which
includes
the Gunnison River. "The project furnishes the long-time regulatory
storage
needed to permit States in the upper basin to meet their flow obligation at
Lees
Ferry, Arizona, as defined in the Colorado River Compact, and still utilize
their
apportioned water. Water stored by the project provides a portion for direct
use
in the upper basin. Sediment and flooding are better controlled and recreation
development
and fish and wildlife conservation have benefited. Because of
project
development, a significant amount of electrical energy is produced to meet
the
needs of the upper basin and adjacent areas." - Bureau of Reclamation
In 1933, Taylor Park Reservoir, in the upper reaches of the Gunnison River,
was
completed, giving the Uncompahgre Valley Water Users Assoc.(UVWUA)
water
rights, effective Sept. 1933. (This date is important, as you'll soon
see)
In 1956, Congress passed the Colorado River Storage Project Act(CRSP).
In 1978, the Aspinal Unit dams on the Gunnison River, consisting of
Blue
Mesa, Morrow Point, and Crystal, were completed as part of the CRSP.
That
same year, in a consolidated water case, the NPS obtained water rights to the
Gunnison
River with an effective date of March 1933. (Case # W-437, Mar.6, 1978)
The
interlocutory decree entered by the water judge in the consolidated cases in
Water
Divisions 4, 5, and 6 on Mar. 6, 1978 ordered that the conditional water
right
for the Gunnison River on lands reserved by Presidential proclamation on
Mar.
2, 1933 be quantified in the form of an application to make a conditional
water
right absolute subject to the notice and hearing requirements of Colorado
law
in or before the month of December in the fourth calendar year following
the
year in which a final decree is entered. As of the date of the filing of this
application(Case
# 01CW05; Jan 18, 2001), no final decree in Case # W-437
has
been entered.
The most important fact is taken from Case # W-437 itself. It declares:
use
(of the Gunnison River water): "As decreed in the 'Partial Master-Referee
Report
Covering All of the Claims of the United States of America'(pgs.647-648),
(which
was) adopted by the Court in the decree entered Mar. 6, 1978(pgs.311-14),
the
uses include to 'Insure the continued nutrition, growth, conservation, and
reproduction
of those species of fish which inhabited such waters on the
applicable
reservation dates, or those species of fish which are thereafter
introduced'
and
to 'Attain and preserve the recreational, scenic, and aesthetic conditions
existing
on the applicable reservation dates or to preserve those conditions which
are
thereafter caused to exist.'
The Aspinall Unit dams were thereafter caused to
exist
post 1933 and were existing at the time of the decree. Therefore, the NPS
use
of the water must preserve the current conditions. This is why (we believe)
the
NPS
has chosen to attempt negotiation for water rights, "rather than engage
in an
extensive
court battle".
If you talk to the old timers around here, you will hear many witnesses to
the
fact that current conditions are exactly what should be preserved. Prior to
the
dams,
there was no fishery to speak of, as the fish would all get washed downstream
each
Spring and then the river would run dry many summers. Compare to the
Gold
Medal fishery currently existing, thanks to the dams. U.S. Fish &
Wildlife(FWS)
Flow
recommendations are expected to also endorse pre-dam flows. Of
course, FWS 'science'
was
the cause of the Klamath Falls debacle which is now being proven as flawed.
Too late for the Klamath farmers who have been devastated.
As for the Spring flows declared necessary by NPS, current flows, as
registered
by USGS gaging station below the Gunnison Tunnel, show an average
of
4000-4500 cubic feet per second(cfs) released each Spring with a flow of over
9000cfs
in 1995.(a wet year) (See Chart below) It is apparent that the required flows
are
currently
occurring, albeit softened a bit from historical pre-dam conditions.
Conditions
which, to re-emphasize, included massive downstream flooding and the
river
running dry some years.
Since the argument to mimic historical flows runs counter to the facts that
the
fishery would suffer, that current flows are sufficiently close to natural
flows,
that
many water and energy users(people) would suffer, that NPS has a mandate to
preserve
existing conditions, then why the need for NPS to control the water?
A look at the Black Canyon of the Gunnison National Park and Gunnison
Gorge
National Conservation Area Act of 1999 gives a clue. In that Act, the
Black
Canyon officially became a Nat. Park. Also in that Act, a Resource Protection
Study(RPS)
was ordered to study management options for the Curecanti Nat. Recreation
Area,
which encompasses the Aspinall Unit Dams and surrounding area. Currently,
the
dams are operated by the Bureau of Reclamation with a 'memorandum of
understanding'
with the NPS to manage the surrounding land area. The RPS is to be
submitted
to Congress by October, 2002 and has been characterized by NPS employees
as
a precursor to legislation on the future management of Curecanti.
Could it be that NPS has an agenda that includes a Curecanti Nat. Park?
It is obvious
that
NPS wants to control water allocation decisions that are currently
handled by
the
Bureau of Reclamation. As it stands now, the BOR has an outstanding
record of
managing
water flows from the dams, considering the needs and demands of so many
water
users. Do we want to transfer the power over our water flows from the
seasoned
expertise
of BOR engineers to the NPS bureaucrats with their record of mismanagement,
extremism, tainted 'science', and untruthful propaganda?
Could it be something even more dastardly?
It has been said that 'water is gold'. Control of water then, is priceless.
Colorado
water law has always allocated control of water on a first come, first served
basis
contingent upon proof of beneficial use. Or in other words, use it or lose it.
The
NPS
has back doored itself a water right senior to all others after 1933 based on
an
unconstitutional
presidential proclamation in 1933. After obtaining such right, they
have
failed to prove beneficial use and further claim that beneficial use does not
apply
to
a federal reserved right because federal reserved rights are "present
perfected right",
(Ariz.vs.Calif.,373
U.S. 546, 600-1963). To head off the point that it took 23 years to
attempt
to quantify the claim, the NPS also claims that reasonable diligence is not
applicable
to federal reserved rights,(U.S.vs.Denver, 656 P.2d 1,34 -Colo. 1983).
A record 383 statements of opposition (at $40 a pop) to the NPS quantification
claim
have been filed with the water court. Many others did not know about
their
rights
or could not or did not enter a protest in the required time period and are
"forever
barred" from protest.
The WSLP in Montrose has called on all who have filed protests to oppose
any
negotiation with NPS.
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