Attorney general flip-flop-flips on water battle with Washington

Legal News Line May 8, 2007, 4:00am

Sen. Josh Penry

DENVER -- First he butted in. Then he butted out. Now he's butted back in again. Colorado Attorney General John Suthers changed his mind yet again last week when he and his office decided to re-file objections they had earlier withdrawn to a controversial state water-rights agreement. That withdrawal was praised as likely to assist the progress of stalled negotiations between Washington, D.C. and the users, LegalNewsLine recently reported. The re-filing, however, has been roundly condemned as likely to prolong the dispute. Local Republican state Senator Josh Penry of Fruita called Suthers' latest intervention "troubling." "These types of conflicts are going to continue as long as the litigation proceeds, which only underlines the need to get to a settlement," Penry told the Daily Sentinel. Suthers' office re-filed the objections in Montrose Water Court to stipulations in an agreement between the federal government and thousands of water users of the Upper Gunnison River basin. The users include households, ranchers, farmers and business owners. The original agreement, forged in 2003, was overturned last year in U.S. District Court when Judge Clarence Brimmer ruled it broke federal law. The stipulations allow water users downstream of the basin access to water even though their water-rights are considered "junior." The federal government holds priority water rights to the Upper Gunnison for the Black Canyon portion of the Gunnison National Park. The original objections were withdrawn after users complained of their potential negative impact on negotiations, said Colorado Department of Natural Resources Assistant Director for Water Alexandra Davis. Suthers' re-filing cites the state's fear that the stipulations could create "selective subordination" of Gunnison Basin water rights. That means some users have priority access to water under the agreement while others would not. Davis said the state may pursue policy of "general subordination" of water rights, which would give priority to all users with "junior" water rights. But Penry doubts that the policy is legally acceptable.

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