Watch the river flow: in Colorado, a
national park wins a water claim
—ROB INGLIS, HIGH COUNTRY
The Black Canyon of the Gunnison needs a good scrubbing. Ever
since 1965, when the first of three dams blocked the Gunnison
River upstream of the western Colorado national park, the two-thousand-foot-deep
canyon has missed the regular spring floods that are necessary
for its ecological health. Tamarisks and other plants have taken
over sandbars that were once swept clean every year or two. “You
can actually date some of the trees down there to right when one
of the dams was put in,” says park ranger Danguole Bockus.
But more regular spring cleanings are on the
way. Thanks to a mostly-finalized agreement between the National
Park Service, the state of Colorado and environmental groups,
the Black Canyon will get an annual peak-flow event—a one-day
man-made flood—plus eighty-five days of high flow timed
to coincide with spring runoff. The rest of the year, the river
will have a minimum flow of three hundred cubic feet per second
to help sustain its world-class trout fishery.
The agreement is the product of more than
three decades of litigation hinging on one of the most contentious
questions in Western water law: Does the federal government have
the right to water for federally-owned lands? The water-rights
struggle between states—the traditional arbiters of water
disputes—and the federal government—which often needs
water to accomplish its land-management goals—has lasted
more than a century. But over the past few decades, the federal
government has become increasingly willing to cede control over
water to the states. And water-rights compromises on measures
designating new national monuments and wilderness areas may mean
that, in the future, conservation groups will have fewer options
for protecting in-stream water flows than they did in negotiations
over the Black Canyon. The battle over state versus federal control
of water makes, as Boise environmental lawyer Jeff Fereday puts
it, “a long and interesting tale.”
In 1908, the U.S. Supreme Court ruled that
the federal government, in creating a reservation for Montana’s
Gros Ventre Tribe, had also given the tribe enough water to farm
its reservation. Sixty years later, the court extended the principle,
stating that when the federal government put land under the control
of a federal land agency, it implicitly gave that agency a claim
to enough water to accomplish its management goals. These federal
water rights dated to when the government first set aside the
land, an important detail in Western states, which have “first
in time, first in right” water regimes.
The high-water mark for federal water rights
came in 1976, when the Supreme Court ruled that Death Valley National
Monument had the right to enough water to sustain its population
of endangered desert pupfish. Two years later, though, the Court
held that since ecological preservation was not the “primary
purpose” of Forest Service land, the national forests had
no right to water for ecological purposes. National parks, monuments,
and wildlife areas could still claim water for recreation or wildlife,
but the Forest Service and Bureau of Land Management could claim
it only for timber production, livestock watering, or channel
But the biggest blows to federal water rights
have been legislative rather than judicial. A 1952 federal law
established that federal agencies must claim water rights through
state court systems and can appeal to federal courts only in extraordinary
cases. The result has been a patchwork of state-by-state legal
precedents. The Idaho Supreme Court, for example, does not recognize
water rights for wilderness areas unless the bill designating
the wilderness explicitly claims water. More and more, federal
water rights have become the subject of open legislative debate.
“The era of silence is over,” says John Leshy, professor
of water law at the University of California’s Hastings
College of the Law. “Both sides have now come to the view
that we have to address these things in legislation.”
Over the past two decades, bills creating
national parks, monuments, or wilderness areas have been explicit
in asserting or denying a federal claim to water. A recently introduced
bill to protect Idaho’s Owyhee wilderness, for example,
renounces a federal claim to water for the wilderness and limits
the water claimed for the area’s wild and scenic rivers.
The Black Canyon’s newly guaranteed
flows, expected to get final approval by late summer, rest on
the fact that Herbert Hoover did not sign away the canyon’s
water when he designated it a national monument in 1933. As a
result, the park (upgraded from monument status in 1999) has an
implied federal water right that formed the basis for thirty years
of negotiation over the canyon’s water. Anglers and environmentalists
pushed for higher flows; ranchers and hydropower operators wanted
to keep water behind the dams. When a 2003 backdoor agreement
between the state and the Interior Department forfeited the park’s
claim to peak and shoulder flows, conservation groups challenged
it in federal court.
In 2006, Judge Clarence Brimmer voided the
agreement, saying that it had been made without adequate environmental
analysis and represented an unlawful disposal of federal property.
“They were able to persuade a federal judge that a very
valuable public resource had been given away,” says hydrology
consultant Dan Luecke (a High Country News board member).
Brimmer’s decision forced a resumption
of negotiations that resulted in the current compromise agreement.
The agreement does not guarantee peak flows in the driest years,
but attorney Bart Miller, who represented environmental groups
in the negotiations, says it’s a big improvement over the
2003 deal, which would have provided “just enough to keep
the backs of the fishes wet.” The Black Canyon agreement
is “an enormous victory” for stream preservation,
says Luecke. But in the new water-rights era, the decision to
limit or permanently give up the federal claim to water often
happens before a national monument or wilderness area is even
created. And that means that the Black Canyon case may turn out
to be one of the last of its kind.
Two weeks in the West: solar flip-flops and
—RAY RING, HIGH COUNTRY NEWS
Summer in the West‘s deserts always feels a bit chaotic.
This summer, it’s more than just the seasonal wildfires
and strange cactus blooms—it’s also obvious in the
federal government’s waffling on energy policy.
Clean-energy advocates were stunned on May 29, when the Bureau
of Land Management (BLM) announced that it would not accept any
more proposals for new solar power plants on millions of public
acres in California, Arizona, Nevada, Utah, New Mexico, and Colorado.
Not only do solar plants make electricity without global-warming
emissions; the BLM’s deserts are the solar industry’s
sweet spots. The BLM said its bureaucracy is overwhelmed by more
than one hundred solar applications, and it needed a two-year
time-out to process those proposals and study the potential environmental
impacts of solar developments. Other green groups, such as The
Wilderness Society, praised the agency for its cautious approach.
Meanwhile, the BLM continued to expedite a great deal of natural
gas and oil drilling. Its new 1,603-page final environmental impact
study for an expansion of Wyoming’s Pinedale Anticline gas
field, for example, will permit 3,700 new wells, despite the agency’s
acknowledgement that this could cause further reductions in deer
and sage grouse populations. Some of the West’s most powerful
politicians—including Nevada Senator Harry Reid, the U.S.
Senate majority leader, and Colorado Representative Mark Udall—saw
the imbalance and responded by pressuring the BLM into a flip-flop
on solar. On July 2, the agency announced that it will continue
to accept new applications for solar plants even as it studies
their environmental impacts. Rhone Resch, head of the Solar Energy
Industries Association, called for the BLM to get moving: So far,
he said, the agency’s ten thousand employees “have
yet to approve a single solar energy project.”
Meanwhile, Congress and President George W. Bush have yet to
renew the federal tax credits for solar and wind developers. Those
credits are due to expire at the end of this year, making the
developers—and all those who are worried about climate change—nervous.
So the Western Governors’ Association had plenty of reasons
to focus on energy and climate policies during a late-June meeting
in Jackson, Wyoming. The group’s outgoing president, Wyoming
Governor Dave Freudenthal, repeated his call for the federal government
to “monetize” carbon through a new tax or cap-and-trade
system on carbon emissions. Keynote speaker Jeff Immelt, CEO of
General Electric—a leading manufacturer of wind turbines—said
that regulating such emissions would help the economy by stimulating
entrepreneurs. Clean energy, he predicted, “will be the
biggest growth industry” for the next forty years.
Other risks of fossil fuels were evident in late June: Two men
were killed in accidents on Wyoming drilling rigs over a two-day
span. The victims were Sam Aurther, age fifty-six, and Eric Tuscan-Rice
Jr., age twenty-four. The Wyoming Occupational Safety and Health
Administration is investigating.
There was mysterious good news in the Northwest: Unexpectedly
huge numbers of sockeye salmon migrated from the ocean up the
Columbia River system. By the 26th of June, 157,486 sockeye had
been counted at Bonneville Dam east of Portland, Oregon—ten
times as many as had migrated by that day last year. Biologists
credited better-than-anticipated mountain runoff and ocean conditions,
but they admitted to scientific uncertainty; earlier this year,
their prediction that runs of spring chinook salmon would be good
didn’t pan out.
A federal spokesman told the Idaho Statesman, “It’s
part of a remarkable cycle that’s not fully understood and
over which we have no control”—not entirely true,
since the feds do have some control over the dams that impede
Even the good salmon news wasn’t entirely good: Almost
all those sockeye salmon stay in the main channel of the Columbia.
Only a few hundred are expected to make it past dams on a tributary—the
Snake River—to reach the Salmon River system in central
Idaho. Other chinook and coho salmon runs in Oregon and California
have been a “disaster” this year, the Statesman reported,
and the sockeye remains Idaho’s most endangered species.
“Funnison” in Gunnison
For the past several years, we have piled family, dogs, clothes,
and equipment into our vehicle and for four or five days each
summer headed north. Through Santa Fe, Espanola, and Ojo Caliente
we press onward, until we reach the Colorado border. We snake
through town after town, each one a little smaller than the last,
until we reach our destination of Gunnison.
Now, it’s not that we don’t have fabulous scenery
or fishing here in New Mexico, but Gunnison is different. The
town was established in 1874 and is centrally located in the state
of Colorado, two hundred miles from Denver and 180 miles from
Colorado Springs. It is nestled thirty miles west of the Continental
Divide in a sprawling valley, where the elevation is 7,703 feet.
Gunnison serves as the eastern gateway to Curacanti National Recreation
Area and the Black Canyon of the Gunnison National Park, and the
southern gateway to Crested Butte, a year-round resort only twenty-eight
miles to the north.
While Gunnison is the home to Western State College and destination
for a countless number of visitors lured by its beautiful setting,
recreational opportunities, historical tours, museums, children’s
attractions, golf, and more, those are not the reasons we make
the yearly drive. We are here for one reason—because Gunnison
County’s population is mostly fish.
This area provides some of the finest fishing in North America.
Surrounded by pristine wilderness and abundant open lands, the
cold, clear, clean water runs down from the high mountain ranges
and is ideal for numerous species of fish. The Gunnison area provides
a variety of waters for anglers of all persuasions. Small streams,
big rivers, alpine lakes, and big reservoirs offer numerous fishing
opportunities. Not only do you find diversity of waters, but also
a variety of fish—there are brown, rainbow, cutthroat, brook,
and mackinaw (lake) trout, as well as kokanee salmon, to name
Our visit this time seems to echo past excursions. We arrive
at the cabin and unpack the vehicle, which usually leaves me sweating
and ready for a nap, but it is nearly impossible to stay inside
with the Gunnison River’s siren call beckoning just thirty
yards away. It is mesmerizing. The deep, rumbling water has already
lured other family members and gradually, the competition begins.
Not only have a number of family members from New Mexico made
the trek, but our family residing in Denver always joins the party,
and as it is with many families, there is a healthy competitive
spirit involved in the angling pursuits. While some people are
visiting and catching up, others seem to disappear without a sound,
only to reappear hours later dressed in fly-fishing gear or with
spinning tackle in tow. The objective of the competition, of course,
is to land the biggest fish, and everybody on the trip is silently
pondering their strategy. As we sit around our campfire, eating,
drinking, and talking of itineraries for the next few days, somebody
will eventually say the magic words: “Black Canyon.”
The Black Canyon is where you head when Blue Mesa Reservoir
(which is Colorado’s largest body of water, and host of
the largest kokanee salmon fishery in the United States), Morrow
Point Reservoir, and Crystal Reservoir just don’t seem adventurous
enough. The Black Canyon of the Gunnison’s unique and spectacular
landscape was formed slowly by the action of water, sand, and
stone scouring down through hard Proterozoic crystalline rock.
No other canyon in North America combines the narrow opening,
sheer walls, and startling depths offered by the Black Canyon
of the Gunnison. Both rims of Black Canyon offer beautiful views
without going too far from your car. The South Rim Drive is paved
and offers twelve viewpoints along the way. Some are right on
the road and others involve short strolls on well-maintained trails.
The North Rim Drive is a road less traveled. Many prefer the relative
solitude that this drive offers. It is a dirt road open generally
from late March through mid- to late-November, depending on the
weather. The North Rim Drive offers stunning vistas and six dramatic
overlooks of the canyon, most of which are along the road. But,
for our family, we take a different path altogether.
The dirt road we take begins after an hour-long drive to the
west. The gentleman at the sporting goods store refers to this
as the “locals’” road, and he’s not kidding.
After the customary wrong turns and u-turns (because there are
no signs or markers), we pass fishing and rafting guides who tell
us to turn around because we’re headed for a dead end. Bingo,
now we know we’re going the right way.
Ten minutes more on the rough and rocky road, and we’ve
arrived at the parking lot at the trailhead. The single-track
trail is steep and winding, but for the dedicated fishermen in
our group, it is well worth it. Each of us know that the ”big
one” is in the river below just waiting to be hooked. It
is difficult not to marvel at the beauty of this place. The routes
are steep, unmaintained, and unmarked, but the scenery is spectacular.
The wildlife and fish are everywhere, but the humans aren’t.
With so much publicly-accessible prime fishing, everyone can have
his own private fishing spot. This year it was my brother-in-law’s
turn. He nabbed the “big one,” and his smile let all
of us know it.
The few days seem to come and go all too quickly. We all fish,
mingle, and tell the tales of the previous trips that bring tears
of laughter to our eyes. Next year, there will be a few more to
add around the campfire. Once again, the cars are loaded, hugs
and kisses are passed out, and the journey home begins. For most
of the drive, we will talk about next summer’s trip and
the smile that still rests on my brother-in-law, Andrew’s,