U.S. Eases Way for West to Control Big Volumes of Water

WASHINGTON, Oct. 12 — The Bush administration has opened the way for Western states to gain control over enormous volumes of water previously claimed by the federal government. That would shift the balance in a long battle over control of a scarce resource.

The policies cede to Western states important water rights that the Clinton administration had claimed. Bush administration officials describe the new approach as an antidote to past federal excess.

Environmentalists said the policies would give the states more latitude to transfer water to their cities and away from national parks, forests, wildlife refuges and other federal lands.

Among the affected areas is a national park in Colorado, where the government is loosening its claim to river water that federal officials have called vital to the park's beauty and environmental health. The State of Colorado and other users, including farmers, have argued that large quantities of water stored in a federal reservoir upstream from the park should be made available to them.

The dispute between Washington and the states has been mostly off the public stage. But with most Western states searching to stake out new supplies, experts said, any loosening of federal claims could carry great significance.

"Virtually every drop of water in the Western rivers running through these federal lands is at stake," said David H. Getches, a professor of law at the University of Colorado who has been a Colorado state official responsible for water resources.

Interior Secretary Gale A. Norton repeatedly challenged federal claims when she was attorney general in Colorado. In her confirmation hearings last year, Ms. Norton signaled a more flexible position, saying, "The issue of reserved water rights for wilderness areas and for other important public lands is not an all-or-nothing issue."

The dispute over the park, the Black Canyon of the Gunnison, is before a water court in Colorado. The court ruled in 1978 that the federal government had the right to an unspecified quantity of Gunnison River water to protect what was a national monument.

Seeking to quantify that claim, the Clinton administration argued early last year that the federal rights extended to the full volume of water, including large seasonal surges, that a National Park Service study said was necessary to preserve the ecology and beauty of the park.

In outlining its position, the Bush administration on Sept. 30 took a major step from the Clinton position, signaling a willingness to reach a settlement that would give the federal government considerably less water.

"If they're not going to protect the river, then they're not protecting the park," said Melinda Kassen, who directs the Colorado Water Project for Trout Unlimited, a conservation group.

In defending the policy, the associate solicitor of the Interior Department, Robert D. Comer, said the administration was committed to giving the park the water it needs from the Gunnison River, a tributary of the Colorado River.

In a telephone interview, Mr. Comer said that based on a reassessment the total might fall short of what park officials identified last year as necessary. He also said that in contrast to the Clinton administration the Bush administration would claim a right significantly less than the park's needs. As part of any accord, he said, the government would seek to make up the difference by acquiring water from other sources, which could mean having to buy it from the state, in contests open to bidding by cities, farmers and other water users.

"If you look at all the available water sources," Mr. Comer said, "you have a way of satisfying the park's needs without being overreaching."

In a telephone interview, Rod Kuharich, executive director of the Colorado Water Conservation Board, said the state would welcome any new federal flexibility.

"There is undeveloped water in the Colorado Basin," Mr. Kuharich said. "And we don't want to see the federal government come in and lay claim to water that could be used for the benefit of people in the state of Colorado."

The administration's stance in the Colorado case is consistent with lower-profile decisions on water rights made since the administration entered office. In the most significant, the administration last year abandoned a claim to rights over Snake River water that surrounded a national wildlife refuge. Washington allowed a state court decision in Idaho to stand unchallenged.

At least five Western states have begun broad efforts to sort out competing water claims. Experts said those proceedings would invite the administration to declare its position in dozens of cases.

In general, the law gives the states rather than Washington the authority to allocate water rights. But when the federal government sets aside land for a particular purpose like a national monument or an Indian reservation, the law has been interpreted as giving the government the implicit right to reserve enough water for it.

In interviews recently, officials from the Justice and Interior Departments were guarded in characterizing the administration's position on water rights, citing the negotiations in the Colorado case.

Environmentalists were less reticent. Bruce Driver, executive director of the Land and Water Fund of the Rockies, an environmental group, said he would regard any scaling back of the water claims as a surrendering of authority.

"The West is being developed at a record pace right now," he said. "We have a drought in place, and what streams and waterways that still exist are being bled of all of their water. We're in a race within the environmental community to save what we have left. And there are plenty of other ways for Colorado to meet all its water needs without the federal government giving this right up."

In a letter sent on Sept. 30 to parties in the Colorado dispute by David W. Gehlert, an assistant United States attorney, the government outlined some terms of a proposed pact but did not specify the terms of any federal water claim.

Mr. Comer of the Interior Department was more explicit, saying in a telephone interview on Sept. 30 that the Bush administration was "re-examining" the Clinton administration claim.

But he added: "The administration is dedicated to getting the amount of flow the park needs and to maintain it. What we want to do is to explore with the community and the affected interests the best way to provide water for the park.

"It sounds kind of hokey, but it's real," he said. "It means getting out there with the people who are affected, the users and preservationists, and finding the common ground, rather than have people in Washington, D.C., or judges in black robes decide the issue."

Water users voice concern over Black Canyon plan
Caitlin Clemens
MONTROSE -- Concern over the impacts of a possible 12,000 cubic feet per second (cfs) of water rushing through the Black Canyon of the Gunnison has some members of the Western Slope water community speaking out.
County commissioners from Montrose, Delta and Mesa counties, as well as local water officials and representatives of the Colorado River Water Conservation District presented a united front Friday at the offices of the Uncompahgre Valley Water Users Association.
The gathering was in response to the National Park Service's ongoing attempt to quantify its senior 1933 water right. The NPS proposes to use its senior Gunnison River water rights to restore historic flows of the river through the Black Canyon. The NPS rights go back to 1933, when the Black Canyon of the Gunnison was designated a national monument. When the NPS filed for quantification of that right in 2001, a record 383 objectors filed statements, or objections, concerning the plan.
Gunnison District Court Judge J. Steven Patrick granted a six-month stay in the matter on Oct. 3, shortly after the release of a Bush administration proposal outlining key points to be addressed in a possible settlement.
Upper Gunnison River Water Conservancy District (UGRWCD) Attorney Richard Bratton provided a brief update of issues involved in the quantification case.
"When the Aspinal Unit was started in 1962, it changed the flow regime (of the Gunnison River) for 100 miles, from Taylor Park Reservoir to Delta," Bratton said.
Entities with rights to river flows negotiated and litigated those interests, culminating in a 1975 agreement that outlined proper flows and releases along the river, he said.
Construction of the Aspinal Unit has resulted in increased trout, the establishment of a boating industry and has helped control ice jams, provide flows for agriculture and control flows through the canyon, Bratton said. The dams also helped protect the city of Delta from flooding, added recreational benefits and allowed the UVWUA to take water from Blue Mesa Reservoir.
"All ramifications have been litigated and have resulted in court decrees," he said. "In 1998, the National Park Service came to us and indicated that they could work through established rights."
The NPS 2001 filing for quantification of its 1933 right came as a shock, Bratton said.
"We were blindsided," he said. "We didn't see it coming. And while we all assumed that there would be flows of 300 cfs through the canyon, we heard in 2001 that they anticipate flows as high as 12,000 cfs."
Such heavy flows could have a dramatic impact on agriculture and on recreational uses, opponents of the proposal have said. Mesa County Commissioner Kathy Hall called the NPS filing "onerous," while Delta County Commissioner Ted Hayden expressed concern over possible flooding.
"There is a possibility that we (Delta) could be flooded if this is not managed properly," Hayden said. "We would like to see us have the right to say when and how much water will be released. We are also concerned about the impacts on Delta County's roads and bridges."
The NPS could not be reached for comment by press time; however, any settlement of the Black Canyon water dispute should include assurances Delta won';t experience flooding, according to the U.S. Department of Justice and the Bush administration.
In a Sept. 30 settlement communication about the water rights dispute, Justice Department attorney David Gehlert says the NPS will "work with the city of Delta to devise a mechanism to ensure that a flow regime is developed that will adequately protect the park without contributing to flooding Delta."
The National Park Service's prior right could also impact the Upper Gunnison River Water Conservancy District, which has a refill right to Taylor Park Reservoir, Bratton said.
"Environmentalists want the high flows to stop transmountain diversion," Bratton said. "We oppose that, too, but not at the expense of people here in the basin."
UVWUA Manager Marc Catlin spoke about how the high flows sought by the NPS could impact users in the Uncompahgre Valley.
"Agriculture here is worth $21.5 million, first-time sale," Catlin said. "We've got 80,000 acres of irrigated land and more than 200 different accounts. Our concern is that our diversion dam won't survive. It could be blown out by 12,000 cfs. That would mean we would have no irrigation here at all until we could rebuild."
The UVWUA's diversion dam at the East portal of the Gunnison Tunnel in the Black Canyon was built in 1912 and nearly washed out when forced to handle 8,000 cfs of water during the floods of 1983 and 1984, Catlin said.
There are also concerns over the impact to Crystal Reservoir.
"Crystal was not built to spill except in emergencies," Catlin said. "With this claim it would have to spill every year. It's only capable of handling 2,000 cfs though the turbines and 2,000 cfs through the bypass tubes. Anything over that has gotta be spilled."
The UVWUA's Taylor Park right is six months younger than the NPS's senior right, Catlin said.
"This could be devastating," he said. "Without our Taylor Park storage, the UVWUA would not be a whole unit. There are also issues involving power because that is the future of the Uncompahgre Valley."
Catlin said water users are anxious to sit down with representatives of the government and other entities involved in the NPS filing in an effort to resolve the issues.
Colorado Division of Water Resources Division Four Engineer Wayne Schieldt said there is cause for concern, but the government's recent settlement proposal has taken steps to address impacts.
"The filing could have some serious impacts on users in the upper basin," Schieldt said. "The major impact would be that 1940 and 1941 water rights could be called out by the NPS's 1933 canyon right. The latest proposal has addressed that, but we think the wording could be clearer. The government has said they would protect the 1940s rights (such as those in the Upper Gunnison), but we are seeking co-equal rights with the Aspinal Unit.
"Overall, the state is interested in coming to a resolution without coming to trial," Schieldt said.

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