Groups win suit over water flows

Judge calls Interior's limit on Gunnison illegal, 'nonsensical'

Deborah Frazier, Rocky Mountain News

Thursday, September 14, 2006

Former Interior Secretary Gale Norton's decision to let Colorado limit water flows in the Black Canyon of the Gunnison National Park was illegal and "nonsensical," a federal judge ruled Wednesday.

U.S. District Court Judge Clarence Brimmer also said the 2003 agreement between Norton and Colorado was "arbitrary, capricious and an abuse of discretion."

Brimmer's long-awaited decision was hailed by conservation groups as a victory over Bush administration policies they said ignored science.

Gov. Bill Owens and attorneys for the Interior Department hadn't read the decision Wednesday and were unable to comment.

In the pact, Norton let Colorado set the year-round minimum flow at 300 cubic feet per second for the Gunnison River within the park.

Trout Unlimited, Western Resource Advocates and other conservation groups sued, arguing that 30 years of federal research called for periodic higher flows of 10,000 cfs.

"The deal flatly ignored the science," said Drew Peternell, an attorney for Trout Unlimited, one of several conservation groups that sued.

Federal law allowed for a much higher amount, but the lower figure freed up water for future users, potentially including Colorado's Front Range.

Brimmer said the agreement on the lower flow, which relinquished significant water rights, was an unlawful disposition of federal property and "nonsensical."

"Brimmer's ruling sends an important message that federal public resources need to be protected," said Bart Miller, an attorney for Western Resources Advocates.

Miller, who likened the 2003 deal to the smoke and mirrors employed by the Wizard of Oz, represented several other conservation groups in the lawsuit.

Brimmer said Norton's agreement with Colorado violated federal environmental laws and the Interior Department's duty to protect the park.

In his 32-page ruling, Brimmer said Norton and the state bypassed federal law requiring an environmental analysis and public input "in their zeal to reach a resolution."

Norton also illegally took away the duties from the National Park Service, Brimmer said.

"The National Park Service has a legal obligation to protect the resources of national parks," he said.

Federal researchers found that periodic peak flows of 10,000 cfs or more protect the 3,000-foot-deep canyon by scouring out debris.

Without the roaring spring flows, dead foliage, tree limbs and other trash would clog the canyon, researchers said.

The high flows protect fish, beaches and vegetation in the gorge.

"We're thrilled," said Wendy McDermott of High Country Citizens Alliance, which joined the suit.

"We look forward to working on a solution that protects the river, the national park and the historic and future uses in the Gunnison basin," she said.