BOARDSEP03

• Board Meeting Date: 9/22/2003
• Description: Petition to Enforce the Provisions of the Blue River Decree
• Board Meetings - Doc Type: Other

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33. Senate Document 80 provides that the 52,000 acre foot replacement pool has a
date of priority for ""storage and use" earlier than the priority for the C-BT
Project diversions or stored for delivery to the East Slope. The compensatory
pool has the same date of priority of appropriation as the water diverted or stored
for the East Slope. The concept of "'priority for storage and use" as specified in ,
Senate Document 80 is identical to the concept of a priority date for a water right
under Colorado law. The more senior priority date of the replacement pool
means that the replacement pool fills up first and the compensatory pool fills up
second.

34. In 2002, however, the HUP portion of the compensatory pool had physically
filled, pursuant to the fill priority specified in Senate Document 80, but
Reclamation refused to make a portion of the water physically present in the
HUP available for release because of the Heeney Slide restriction.
Reclamation's announced drawdown rate restrictions for 2003 have a similar
impact because water physically present in the HUP will not be released when
needed. Thus, Reclamation has reduced the usable storage capacity ofthe
compensatory pool, without authority and contrary to its obligations under
Senate Document 80 and as a trustee for the West Slope beneficiaries of the C-
BT Proj ect. Senate Document 80 does not provide that a reduction in usable
storage capacity in Green Mountain Reservoir impacts only the compensatory
pool and has no impact on the replacement pool.

35. The 100,000 acre foot compensatory pool was a key component of the bargained-
for exchange that the West Slope obtained for allowing the C-BT Project to be
constructed and the subsequent diversion of West Slope waters for the benefit of
East Slope users. See Public Service Co. of Colo. v. Federal Energy Regulatory
Comm., 754 F.2d 1555, 1560 (10th Cir. 1985). Senate Document 80 requires
unused water in the replacement pool to be made available to satisfy the West
Slope needs. Reclamation cannot unilaterally undo the compromises embodied
in Senate Document 80.

36. Reclamation's position that any reduction in usable capacity of Green Mountain
Reservoir is absorbed entirely by the compensatory pool leads to the absurd
result that the Reservoir could be reduced to only 52,000 acre foot and that
storage capacity would be allocated entirely to the replacement pool and there
would be no compensatory pool at all. The benefit of the bargain embodied in
Senate Document 80 to the West Slope would be entirely nullified, yet the C-BT
Project would continue to divert water to the East Slope. The Petitioners
anticipate that other situations will arise in the future that may impact, and
reduce, the usable storage capacity of Green Mountain Reservoir, such as dam
repair work and/or silting of the Reservoir bed and banks. Reclamation's
professed position that reductions in capacity will be allocated to the 100,000
acre foot compensatory pool will lead to further erosion of the usable storage
capacity available to the West Slope and emasculate the bargain made by the
West Slope allowing the C-BT Project to go forward.

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