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 2,000-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 manmade flood — plus 85 days of high flow timed to coincide with spring runoff. The rest of the year, the river will have a minimum flow of 300 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 maintenance.
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 30 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 (an HCN 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.
The author is an HCN intern. This article was made possible with support from the William C. Kenney Watershed Protection Foundation and the Jay Kenney Foundation.
This article appeared in the print edition of the magazine with the headline Watch the river flow.
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