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How do you keep water down on the farm …

Article by George Sibley

Gunnison Water – December 1999 – Colorado Central Magazine

An Embarrassment of Riches

WHEN THE DISTRICT JUDGE decreed for the second time in 1998 that there was not enough water in the Upper Gunnison valley for the Union Park reservoir and diversion to the Front Range, the Upper Gunnison River Water Conservancy District Board was relieved. But they had no time to relax, because staring them in the face was a diligence hearing on the long-dormant Upper Gunnison Project.

As originally conceived in the late 1950s, when the Bureau of Reclamation was making big promises because everyone — including the Bureau — thought that the federal government would be paying for the project with power revenues, the Upper Gunnison Project (UGP) consisted of six small-to-medium reservoirs storing around 110,000 acre-feet and ten diversion canals to irrigate a lot of increasingly marginal benchland and to water municipal growth in the valley.

The conditional rights for these elements all go back to 1957, when the Colorado River Storage Project (CRSP) act was passed. A pesky but important aspect of conditional water rights is the fact that, every six years, the conditional right holder has to “show diligence.” In other words, the holder has to demonstrate that steps are being taken, progress is being made, and that (to quote from the law) the project “can and will be completed with diligence and within a reasonable time.” If the holder of the conditional right does not demonstrate this kind of diligence, then the water judge declares the conditional right abandoned, and the water is theoretically up for grabs again. And the UGP came due this year for a diligence hearing.

THE Upper Gunnison Water Conservancy District (UGRWCD) came into being in 1959 to co├Ârdinate (among other things) the construction of the UGP with the Bureau of Reclamation. At that point, it was assumed that the Bureau would be building this and other CRSP local projects with federal funds to be repaid with power revenues from the Aspinall Unit and other CRSP “cash register” dams.

In the late 1970s, however, it became increasingly clear that the federal government was done building dams and ditches liberally everywhere in the West. In 1977, President Jimmy Carter’s administration eliminated almost all of the unbuilt CRSP projects, including some for which some funding had been allocated. (The only CRSP project that lingers as a possible federal project is the Animas-LaPlata Project down in the tributaries of the San Juan River in southwestern Colorado — a Rube-Goldberg pumped storage project that has only resisted the stake through the heart because it involves promises made to the Ute Indians.)

For the UGRWCD this meant that, if the UGP was going to be built, it would have to be built with local or state monies, and if the State built the reservoirs, the State would have ownership in the water. Nobody needed two guesses as to where the water would probably eventually go in that case. The only really acceptable alternative for the UGRWCD was to figure out some way of building the UGP, or some parts of it, with funding from within the valley.

In a 1991 diligence hearing, realistically weighing the chances of such funding, the water judge erased about a fifth of the district’s conditional rights, and issued some fairly explicit steps to be completed by the 1999 diligence hearing in order to keep the rest of the conditional right alive.

WITH UNION PARK occupying its time and money, the UGRWCD Board was not very diligent about the UGP until the completion of the second Union Park trial in 1997. But they would be facing a new diligence filing in March 1999 to show six years of progress. Thus, late in 1997, the Board put together some alternatives to put before the people — all for considerably scaled- down versions of the original UGP.

None of the alternatives would use all of the 88,000 acre-feet left in the conditional decree after the previous diligence hearing. But even a one-reservoir alternative storing about a third of the conditional rights was estimated by the Board at $36 million — an annual cost (bonded over thirty years) to the district of around $2.5 million. The “Cadillac” alternative with three reservoirs, called for developing about two-thirds of the conditional rights; it came in at around $88 million — which would mean $6 million a year in debt service and operating costs for a county with a population of 10,000. To make matters worse, subsequent discussions have indicated that those cost estimates were pretty optimistic.

In 1998, pleading a need to recharge the “war chest” for fighting out-of-basin diversion, the District got a mill levy increase from one to two mills in a special election, raising its annual revenues to around $550,000. But the debate in the newspapers over this increase left little doubt that — while the people of the valley would pay a lot to keep Upper Gunnison water in the Upper Gunnison — it would be a much different situation if the UGRWCD Board came back asking for a substantial — well, huge — levy increase to build dams in the valley. In fact, the groups uniting with the Board to oppose diversion out of the valley began to fracture over what to do with the water if it stayed in the valley.

AT THAT POINT, the challenge was to decide what to do with the water in the valley. With that in mind, environmentalist Butch Clark, founder of POWER (People Opposed to Water Export Raids) and, for one term, a member of the UGRWCD Board, organized a “Watershed Evaluation Team” (WET) to develop alternatives to conventional dam-and-ditch water development.

The law no longer insisted that water must be diverted out of a stream in order to obtain a water right; it now said that rights can be granted for water “diverted, stored, or otherwise captured, possessed and controlled” for beneficial use. And beneficial use has been expanded to include “recreational purposes, including fishery and wildlife.”

So Clark and the other members of WET — a motley crew of environmentalists and “new utilitarians,” including this writer (truth-in-reporting disclosure) — were looking for ways to create or construct in-stream controls and diversions in waterways that would improve fisheries, restore old wetlands, enhance kayaking and rafting options, and otherwise establish a legitimate claim on using the water without having to further disrupt or destroy natural (and cultural) systems.

Ideas ranged from small “hydrobeaver” dams (which would produce low-head hydropower energy with structures “designed to emulate beaver dams in size and environmental impacts”) to “renting” storage in the Aspinall Unit from the Bureau, then leasing the water to downstream users in the Lower Colorado Basin (who are already “borrowing” the water anyway). Those ideas were all very interesting, the UGRWCD Board said, when WET presented its alternatives.

But the judge also told us what we needed to be working on — namely, the remaining structures conceived in the late 1950s for the Upper Gunnison Project. The Board’s attorneys also questioned the feasibility — rightly enough — of some of the WET alternatives, including the leasing or selling of water to the Lower Basin, a very hot potato in the Upper Basin.

Basically, the Board felt that WET was undermining their ability to put a diligence proposal before Judge Brown that the judge could believe the valley was unified behind — with a healthy “can and will” attitude.

When it came down to the wire, the UGRWCD filed a diligence proposal that incorporated several small-scale enlargements of existing storage, one new 8,000-12,000 acre-foot reservoir, and two in-stream diversion structures and a wetlands construction that resemble some of the WET ideas. The total package would only perfect a little over a third of the remaining conditional decree, and the total project would probably cost between $100 million and $160 million by the time the valley got around to implementing it. Good estimates on all of the project costs are not yet in, but annual costs for debt service and operation are currently estimated at somewhere in the $6-10 million range.

Does anyone — including the UGRWCD Board — really want to build those dams? Some members of the Board do, sort of, if only because “this is the way we do things in the West.”

But even those who favor traditional dam-and-diversion development are concerned about the cost. The water developed by the project would cost several hundred dollars per acre-foot to the users, and that is not something ranchers or even small towns can afford without significant subsidy.

Butch Clark was very concerned about the new reservoir, which would be up Tomichi Creek, just a tunnel away from the Arkansas Valley. He filed opposition to the diligence proposal, asking, “Will our District consider transmountain diversion to obtain funds for its proposed water development?”

The transmountain diversion issue does sort of loom over this diligence hearing. The UGP conditional rights were cited by Judge Brown in his decision that there was insufficient uncommitted water in the Upper Gunnison for the Union Park project. What if Judge Brown now decides that there is no real hope that the UGRWCD “can and will” develop even this “lite” version of the UGP, and abandons the conditional decree? Does that mean that 88,000 acre-feet of water is suddenly available?

Not necessarily, since the Bureau’s 60,000 acre-foot subordination for uses within the Upper Gunnison basin is still in place — more or less. Efforts to get that into some kind of meaningful form on paper, however, are proving frustrating for all parties.

Democracy comes to water in the west

So the diligence proposal is the second thing on which the valley awaits a decision — and obviously the decision on that could have an effect on the Union Park appeal before the Supreme Court. Quite a lot might ride on which decision comes first. Meanwhile, however, the fracturing of the unified front in the valley manifested itself in another direction.

Water conservancy board members in Colorado are, by law, appointed by district judges, but the law does provide a petitioning process for popular elections if portions of the public are feeling under-represented. The district judge who covers the Gunnison valley believed — probably with some statutory justification — that the UGRWCD Board should be primarily made up of those who are the major water users in the district. In the Upper Gunnison — and many other districts in the state — this has meant a lot of ranchers, ski resort representatives (due to the man-made snow that increasingly seems to be replacing the natural stuff in Colorado), land developers, municipal representatives, and the like.

This particular district judge, who is a sensitive man, also has stated his belief that the Board should have a certain congeniality to it. This meant that he was indisposed to appoint to the Board known environmentalists and others who might oppose the major water users.

Butch Clark — perhaps the most knowledgeable person in the valley on Western water issues — had one term on the Board, but was often crosswise with the ranchers, and so was not reappointed. Steve Glazer from Crested Butte, another known environmentalist — the Sierra Club’s Rocky Mountain region water expert, and the only person who could challenge Clark as most knowledgeable in the valley — was not appointed to the Board by the judge when that subdistrict’s representative resigned, either (despite the fact that both the Town of Crested Butte and the Town of Mt. Crested Butte passed resolutions of support for Glazer). The man supported by the ski area (who had never attended a Board meeting) was appointed instead.

This led Steve Schechter, a local contractor and environmentalist — together with POWER and the valley’s other environmentalist organization, the High Country Citizens Alliance — to initiate the petitioning process early in 1999 when two positions opened up right in the middle of the diligence process (the Crested Butte seat again, and the seat representing the Tomichi Creek valley).

Both petition drives were successful in establishing the need for an election, but only one election took place. When Steve Glazer announced for the Crested Butte seat, no one mustered the gumption to run against him, so he was appointed by something resembling acclaim. In the other district, however, an environmentalist already on the Board, Ramon Reed (whom the judge had indicated he would not reappoint), was opposed in the District’s first election by two ranchers. One of them — Greg Peterson — won handily. In terms of “sending a message,” the election seemed to suggest that the valley is — well, split.

A Major Corporation gallumps over the hill

But fortunately, the elections were hardly over when something came along to unite the valley’s people again. On July 19, one of the world’s largest mining companies, Cyprus-Amax — now, apparently, Cyprus-Amax-ASARCO, after yet another merger — came to town to apply for conditional water rights on 3,000 acre-feet of storage it says it needs from East River tributaries to develop a molybdenum mine on Mt. Emmons.

Mt. Emmons rises abruptly but gently from the town limits of Crested Butte. Crested Buttians are proud of the town’s mining heritage — seven decades of steady coal mining and off-and-on silver and metal mining — but are generally not interested in having it as part of the present-day economic mix. Indeed, they’re so uninterested that the Town of Crested Butte is substantially invested as an objector to the Cyprus-Amax application. Gunnison County is also an objector, as is the High Country Citizens Alliance (which had come into being to oppose Amax’s first foray into the valley back in the late 1970s).

Those opposing Amax’s application for water raised two principal arguments. First, they argued that there was no water available in the Crested Butte end of the valley. And second, they maintained that Cyprus-Amax was just speculating since the company does not plan to mine the area for at least 15-20 years, and then only if the price of molybdenum warrants developing a new mine.

Cyprus-Amax argued, in the first case, that they would just use part of that 60,000 acre-foot Bureau of Reclamation subordination that the water court had already said had to be used within the physical valley. In the second case, they contended that the massive and growing set of environmental and socioeconomic rules and regulations and mitigation procedures which they have to comply with, including Gunnison County’s exhaustive land-use plan, indicates that they have to start now to have any hope of mining twenty years from now.

JUDGE PATRICK returned a kind of “no-decision decision” in mid-September. He found for Cyprus-__Amax in most regards, dismissing the allegations of speculation. But he agreed, or seems to have agreed, with the opposers on the water availability issue. What he really said, concerning the water availability issue, however, is that water isn’t available because the mining company did not have a contract with the Bureau of Reclamation for the only water that might be available.

The “Catch-22” in this instance is the fact that nobody has a contract with the Bureau for that water. And not only does the Bureau not have a contracting process for tapping into that subordinated water, the Bureau hasn’t yet even signed anything with the Upper Gunnison Conservancy — or anyone else — to formally acknowledge the subordination.

Just recently, the Bureau announced, from the federal level, that it will sign an agreement with the UGRWCD, after an Environmental Assessment has been conducted — a well-known delaying tactic for bureaucrats hoping the bill will come due on someone else’s shift.

The Bureau’s preference on the subordinated water (aside perhaps from a fervent wish that the promise hadn’t been made in the first place forty years ago) is apparently to turn the process of contracting for the water over to the Upper Gunnison Conservancy District — if only because there are already 475 small users (ranchers expanding their irrigation, municipal expansions, homeowner springs, et cetera) with rights junior to the Aspinall rights who will be contracting for part of the subordination to protect themselves against downstream calls. And the Bureau surely doesn’t want all that hassle.

But the Bureau probably also doesn’t want the bigger hassles that will come when some kind of contracting process is actually in place, and Cyprus-Amax comes back for its constitutionally undeniable right to divert available water. Let the locals fight it out.

Some Upper Gunnison contingents argue, or hope, that the subordination may already be fully appropriated, by the time the existing junior uses and the Upper Gunnison Project (assuming diligence is granted) are added up. But Kathleen Klein, the manager for the Upper Gunnison Conservancy, thinks such thinking may be a fond but futile wish, especially given the huge odds of raising money for the Upper Gunnison Project structures (without, say, some major funding from corporations or metropoli).

Meanwhile, Amax announced in late October that it would appeal Judge Patrick’s decision about water availability. Then the opposition announced that they were considering appealing the part of Patrick’s decision that said Amax wasn’t speculating (even though they were the ostensible winners in Patrick’s decision). And those announcements were followed almost immediately by the news that Amax had been bought out by an even larger mining company, Phelps-Dodge (which is primarily a copper producer with no molybdenum operations prior to this latest engulfment).

What that means, no one can say — but the High Country Citizens Alliance leaders are not sanguine. They figure that as long as a molybdenum deposit as rich as this one sits there, mining companies will be like dogs around a fire plug.

The Knot thickens, and thickens and thickens.

And don’t forget the Black Canyon

Part of the Bureau’s slowness in dealing with the subordination issue may be due to the fact that it is engaged in another conflict over Upper Gunnison water. In this match, the opposing team is one of the Bureau’s fellow organizations in the Department of the Interior, and this snarl could conceivably have an Alexandrian impact in taking care of the Knot in terms of the disposition of water.

Just before leaving office in 1933, President Herbert Hoover declared a National Monument at the lower end of the Upper Gunnison Basin, the Black Canyon of the Gunnison National Monument. And about a month ago, Congress turned that steep, deep and dark canyon where the Gunnison River got trapped in a big blurp of Precambrian rock into the Black Canyon of the Gunnison National Park.

Court decisions since the turn of the century have consistently established that, when the federal government reserved parts of the public domain for any statutorily constituted purpose — Indian reservations, national parks, national monuments, national forests — the reservation of sufficient water to carry out the specific purpose was implicit in the reservation of land. And the mandate for national monuments is like the mandate for national parks: to protect and preserve the natural systems that make the land worth setting aside for the permanent enjoyment of Americans.

This means that, when the Black Canyon National Monument was created in 1933, Congress also implicitly set aside enough water to maintain the natural systems of that part of the Gunnison basin. And the natural systems in the Black Canyon were pretty well determined by a river that ran a big flood stage — 8,000, 12,000, 15,000 cubic feet per second. When the snow was melting out of the high country, seasonal floods moved huge rocks and scoured out all but the most flood-adaptable vegetation. But for much of the rest of the year, the river diminished to low flows and pools that, in some places in the canyon, disappeared entirely into and among the rocks rolled by the flood stage. The Black Canyon is a place of erratic extremes — but that’s nature.

Part of the natural aquatic system farther down on the Gunnison (below the National Park) are four species of Colorado River fish that have suffered seriously from the human changes along the river: the Colorado pikeminnow (formerly the squawfish), the razorback sucker, and the bonytail and humpback chubs. These fish went onto the Endangered Species list in the 1980s, an event that mandated the Colorado River Endangered Fish Recovery Program, beginning in 1988. Research indicates that these species of fish thrive best in streams flushed by seasonal floods, followed by low flows and warm water for the young fish. They also don’t compete very well against the nonnative sport fish that have been introduced into the Colorado River — rainbow trout, lake trout and pikes.

SO WE HAVE a reasonably ironic situation. We have built a number of large structures on the Upper Gunnison River to regulate the natural rhythms of the river, to make them more compatible with the needs of humans producing food and power, and living in the growing clusters endemic to a swarming population.

But now, due to a downstream National Park committed to the maintenance of natural systems, and a national law to protect non-human species from human activities, we are committed — more or less — to operating those large structures in a way that is at least somewhat consistent with the old natural rhythms of the river.

In the Upper Gunnison Basin, this is a situation where we local mortals have to stand back and wait for the feds to play out their hands. The Black Canyon water right — which will be senior to the Taylor Reservoir, the Aspinall Unit and a lot of smaller junior rights upriver — has not been quantified. The National Park Service, which administers the National Monument/Park, is studying the issue, to determine what quantities of flow, and at what times, would best serve its legislated mission.

But the Park Service’s largest protagonist in this quantification — which will almost surely involve heavy spring flows — is its fellow agency in the Department of the Interior, the Bureau of Reclamation, which manages the Aspinall Unit dams just above the National Monument, and is charged to manage the dams for maximum power revenues. From the Bureau’s more traditional utilitarian perspective, releasing a spring flood through a dam is an expensive waste of good peaking-power potential.

Steve Glazer opines that the Park Service has not quantified its reserved water right because “it has been bullied by the Bureau of Reclamation” into not saying what would work best for its needs.

The Secretary of the Interior has ordered the Bureau and the Park Service to “speak with one voice” in recommending a management regime that works. If this is possible at all, the object is to best meet the contradicting needs of both agencies. Presumably, they are working on it.

So there is the Gunnison Knot. And here along the streams of the Upper Gunnison, we wait for a lot of uncoordinated entities to unravel and untangle it — or to tangle it further. We wait for the Colorado Supreme Court to decide whether Union Park will be back around again; for Judge Brown to decide whether the UGRWCD Board has actually shown diligence in developing an Upper Gunnison Project that no one really wants; for the Bureau of Reclamation to decide how to handle the subordination; and for the Bureau and the National Park Service to resolve their contradictory needs for the water in the canyons of the Upper Gunnison.

These decisions are clearly interwoven in their effects, but because there’s no coordination in their execution, they aren’t interwoven at all. They’re just knotted.

It is hard to imagine a single bold stroke that would resolve this knot like Alexander “resolved” the Gordian Knot. But Butch Clark suggests that most strands of the Knot could be picked apart if the principal parties involved — the UGRWCD, the Bureau, the Park Service and other major basin users downstream — could sit down in a small room with Judge Brown or Judge Patrick and enter direct negotiations with a mutual willingness to make some sacrifices.

The Park Service would have to accept comparatively modest high flows that would still be above the current spring releases. The Bureau would have to give up some of its premium peaking-power capacity to the restoration of more natural systems in the canyons below the Aspinall Unit. The UGRWCD would have to give up some of its conditional rights to help the Bureau make the heavy spring flows possible — in return, perhaps, for call protection from downstream.

The UGRWCD Board is, in fact, contemplating the conveyance of some of its conditional rights to the Bureau to pass along to the Park Service for its spring floods, in return for call protection from downstream users from the Bureau (which would answer downstream calls with water releases from Blue Mesa, enabling junior users in the Upper Gunnison basin to never have to let the water flow past).

Such a resolution would drive the silver stake through the heart of the Union Park Project, which is a desirable goal for the people in the Upper Gunnison basin. But it would also effectively make any future development above the Aspinall dams junior to the endangered fish of the Colorado River system, which is not desirable for everyone (unless that development is the big mine that almost everyone opposes).

IN ALL OF THIS, it is easy to get “too local” — to forget that the Upper Gunnison is part of a much larger Colorado River basin that has its problems too. The water that the Front Range metropolitan area water suppliers are lusting after is basically “paper water” decreed to Colorado by the “Law of the River.” That law stems primarily from the Colorado River Compact of 1922 that “equitably” divided the river’s waters between an Upper and a Lower basin, and also the Upper Colorado River Compact that gave Colorado a little over half of the Upper Basin’s waters to develop.

But because of the erratic annual flows of the river, half is a rough figure to calculate. On paper, at least, traditional utilitarians say that Colorado has not yet developed its full allocations from those Compacts. And the Compact waters are allotted to the states, not just those parts of the states actually in the Colorado River basin.

In “real water” terms, however, the Colorado is q seriously stressed river system (if, indeed, a river so full of plumbing can still be called a river at all). California has been using more than its Compact allocation for years, “borrowing” the water from the Upper Basin. The big desert reservoirs and open aqueducts evaporate more than an eighth of the river’s water every year — and no one, especially the big downstream states, wants that credited against their Compact allocations. The alkaline soils common to desert environments cause buildups in the river of salts and alkaloids that leave the water barely usable by the time it gets to Mexico. Changed habitats all down the river threaten and endanger aquatic and riparian species and plant communities.

All of these problems are seriously exacerbated by upstream depletions of pure water like the proposed Union Park. From the overall basin perspective, the best thing the people of the Upper Gunnison can do is to keep as much water as possible flowing through their valleys and down the canyons. And the downstream states are undoubtedly delighted that we Upper Gunnison people are willing to go on taxing ourselves for multi-million-dollar fights against out-of-basin diverters, to protect water that the downstream states have come to depend on and get for free. The concept du jour down in Arizona and California is “water banking”: pumping that “surplus water” back into quasi-depleted aquifers against the day when the free surplus water might no longer be available.

The Gunnison Knot is just one local manifestation of what happens when a culture in denial pushes the natural limits on a scarce and vital resource — in a cultural environment depicted by the Old West attitude, “whiskey’s for drinkin’ and water’s for fightin’.” The fact that our water is controlled and regulated by a tangle of public and private entities that don’t communicate very well further complicates the picture.

What will we do? Probably fight on. That’s just the way we do things in the West.

When he’s not writing, George Sibley is teaching at Western State College in Gunnison or else hanging out at one of the coffee shops there.