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<br />liver the Lower Basin's share, but the Lower Basin
<br />couldn't claim any more than its share, That was the
<br />compromise that allowed the construction of HQover
<br />Dam and the Los Angeles Aqueduct
<br />It was left to each basin, upper and lower, to work
<br />out a deal internally. In 1948, Colorado came to an
<br />agreement with ii..s fE1l0Vw" Upper BasL"l s!!!.tes 0Nyo-
<br />ming, Utah, and New Mexico), based on how much
<br />they contributed to the flow. ColoradQ ended up with
<br />51.75% of the Upper Basin's 7.5 million acre feet, or
<br />about 3,9 million acre feet
<br />
<br />A CCORDING TO THE Colorado Water CQnservation
<br />.l"board, our state consumed about 2.6 million
<br />acre.feet of Western Slope water on average fwm 1981
<br />to 1985 (newer numbers are hard to come by). That
<br />leaves about 1.3 milliQn acre.feet that Colorado has a
<br />legal right to, That's what the politicians and water de.
<br />velopers ate talking about when they say that Colorado
<br />is losing its water to downstream states.
<br />And since the Gunnison is the major untapped tribu.
<br />tary of the Colorado in Colorado (it contributes about
<br />1.8 mi1\ion acre-feet to the Colorado's flow at the state
<br />line), it's a logical place to start looking for surplus wa-
<br />ter.
<br />One complicatiQn in this reckoning is that the an-
<br />nual average flow of the ColQrado River is probably
<br />closer to 13.5 mi1\ion acre-feet than to 16 million. So
<br />there might not be nearly as much water available as
<br />was assumed in 1922; deduct Mexico's guarantee, and
<br />you're left with 51.75% of 6 million, which works out to
<br />3,1 million acre-feet- and if we're already using 2,6
<br />million, that leaves only 500,000 acre-feet for develop-
<br />ment.
<br />Another complication was the federal reserved
<br />rights in the Black Canyon of the Gunnison National
<br />Monument. Until that 1933 water right got squared
<br />away, nobody could be sure hQW much water might be
<br />available for diversion or development in the Upper
<br />Gunnison.
<br />At the' heart of this is the 'Winters Doctrine." It is a
<br />1908 federal court case which holds that when the fed-
<br />era gQvernment reserves public land for a certain pur-
<br />pose, then it also claims enough water under state law
<br />
<br />to serve that purpose. The date of the claim (very im. C.
<br />portant under Colorado's "first in time, first in right'~
<br />Doctrine of Prior Appropriation) is the date of the res-
<br />ervatiQn, '
<br />It came out of a Montana water case involving an In-
<br />dian reservation, but the federal government has re-
<br />served land for many other purposes over the years -
<br />national forests, for instance) or miiiuuy bases. The rel-
<br />evant reservation here was President Herbert C. Hoo-
<br />ver's 1933 pwclamation of Black Canyon of the
<br />Gunnison NatiQnal Monument, which became Black
<br />Canyon of the Gunnison National Park in 1999.
<br />That means there is a 1933 water right for water suf-
<br />ficient to serve the purposes of the monument. One
<br />purpose of the monument was to preserve the plants
<br />and animals there - that is, the "natural state" of the
<br />canyon, Under the Winters DQctrine, the feds have to
<br />go through state water court to get this water right rec-
<br />Qgoized, and the Department of the Interior ftled for it
<br />in 1972, The water right was granted in 1978, but no-
<br />body said how much water would be involved; the
<br />coun left that for future determination.
<br />
<br />DETERMINING JUST HOW MUCH water the Park
<br />needs to fulfill its purposes is a process called
<br />"quantification," and it's not a simple process for Black
<br />Canyon, In days of yore , back when the Monument was
<br />proclaimed, spring floods roared through the canyon,
<br />sweeping away sandbanks and vegetation,
<br />But with three darns upstream now, the river flQWS
<br />at a relatively steady rate through the canyon, and so
<br />sandbars have developed, alQng with trees - stuff that
<br />wouldn't be there in a "natural state."
<br />SQ in theory the feds could claim enough water, with
<br />a 1933 priority date, to provide those old-fashioned an-
<br />nual floods. That's pretty much what happened in Jan-
<br />uary Qf 2001, just before the Clinton Administration
<br />left office,
<br />Just about everybody who matters on the Western
<br />Slope opposed the filing; it attracted nearly 400 legal
<br />objectiQns. Greg Walcher, director of the Colorado De-
<br />partment of Natural Resources, said the feds were "ba-
<br />sically asking for the entire spring run-off of the upper
<br />Gunnison, every year." This could have caused floods in
<br />
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<br />ALIDA TRADING COMPANY PROUDLY SUPPORTS KHEN RADIO - 106.9 FM
<br />
<br />June 2003' Colorado Central Magazine. 21
<br />001'/81
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