BOARD00344

• Board Meeting Date: 7/28/2003
• Description: ISF Section - Request for Approval of Enforcement Agreement - Case No. 4W437; NPS Quantification of Black Canyon Reserved Right
• Board Meetings - Doc Type: Memo

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interlocutory decree that granted the Black Canyon an unquantified, conditional instream flow .
reserved water right in the Gunnison River with a March 2, 1933 priority date for fishery,
recreational, scenic, and aesthetic purposes. The decree required the United States to file an
application to quantify the instream flow right in or before the month of December in the
fourth calendar year following the year in which a final decree was entered. A final decree in
Case No. W-437 has not yet been entered.

F. On January 17, 2001, the United States filed an application in Water Division 4
to quantify the Black Canyon's instream flow reserved right. The application requested flows
ranging from a baseflow of300 cfs to peak flows of more than 12,000 cfs in some years,

G. The Department of the Interior, including the National Park Service and the
Bureau of Reclamation, the State of Colorado, and other objectors engaged in settlement
negotiations to protect water resources in the Black Canyon without the need for long, costly,
and acrimonious litigation.

H. On April 2, 2003, the Bureau of Reclamation, National Park Service, Fish and
Wildlife Service, Colorado Department of Natural Resources, and Colorado Attorney General
signed an Agreement entitled "Agreement - Black Canyon of the Gunnison National Park"
(hereinafter referred to as the "2003 Agreement") which addresses two water rights benefiting
the Black Canyon. The water rights are to be quantified for the Gunnison River from below
the Gunnison Diversion Dam through the Black Canyon to the confluence of the North Fork of
the Gunnison River. The 2003 Agreement provides that the Park Service will hold a reserved
water right for 300 cfs or natural flow, whichever is less, with a 1933 priority date, and the
Board will hold an instream flow water right under Colorado law with a 2003 priority date,
which will be for water beyond that which satisfies present and future obligations of the
authorized purposes of Aspinall, as specified in the Colorado River Storage Project Act, 43
US.C. ~ 620 et seq. as in effect on April 2, 2003, and under the Aspinall Unit's existing water
rights decrees obtained under Colorado law.

1. The 2003 Agreement further provides that the National Park Service, the Bureau
of Reclamation, and the State of Colorado shall enter into a binding Memorandum of
Agreement regarding enforcement and protection of the Board's instream flow water right.
This MOA is the Memorandum of Agreement required by the 2003 Agreement.

J. The Board has authority to enter into this MOA under ~ 37-92-102(4)(a) and
~ 37-60-106, C.R.S. (2002).

K. The National Park Service has authority to enter into this MOA under the
National Park Service Organic and General Authorities Act, 16 US.C. ~ I et. seq. (1916);
Black Canyon of the Gunnison National Park Act, 16 U.S.C. ~ 410fff et. seq. (1999).

1. The Bureau of Reclamation has authority to enter into this MOA under the Act
of June 17, 1902,32 Stat. 388 and all Acts amendatory thereof and supplementary thereto.

M.

The National Park Service has made flow recommendations and provided data
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