BOARD

• Board Meeting Date: 1/24/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 6

to dismiss, claiming that no groundwater was allocated under the Compact. Kansas argued that
the Compact includes both alluvial and Ogallala Aquifer groundwater. Colorado's position was .
that the Compact includes alluvial, but not Ogallala, groundwater. On January 28th, Special
Master McKusick issued a report recommending to the Court that the Compact restricts the
compacting states' consumption of all ground water - alluvial and Ogallala - that depletes
stream flow in the Republican River Basin. The Supreme Court simply denied Nebraska's
motion to dismiss, without ruling on the alluvial/Ogallala distinction. However, the Court's
ruling will have the practical effect of allowing a trial on the impacts of all groundwater
pumping. On July 31st, Nebraska filed a cross-claim against Colorado, alleging overpumping
and Compact violations. In our counterclaims against Nebraska and cross-claim against Kansas,
we alleged both downstream states are violating the Compact and injuring Colorado by their
overpumping. The Special Master has set a very aggressive trial preparation schedule, with trial
set to begin March I, 2003. The states, including Colorado, tiled briefs concerning several
preliminary legal issues on January 16th. Determining Ogallala impacts will require a
complex technical trial with extensive modeling. The Master also assessed 1/3 of his fees and
costs against Colorado. The case could substantially affect Republican River basin and Ogallala
Aquifer water users in Colorado.

9. Animas-La Plata Pro.ject.

Issue: Will legislation authorizing construction of the Animas-La Plata Project and
finally settling the Ute Tribes' reserved rights claims on the Animas and La Plata Rivers be
enacted this session?

Decision: Yes!

Discussion: In 1986, Colorado entered into a settlement agreement, which was approved by
Congress in 1988, that resolved the Ute Tribes' reserved rights claims in Water Division 7. Part
of that settlement is contingent upon construction of the Animas-La Plata Project. The
settlement provides that if the project is not completed by January 1,2000 - which of course it
wasn't - the Tribes have five years to commence litigation of their claims from the Animas and
La Plata rivers. In 1998, Secretary of the Interior Babbitt proposed what has been called
Animas-La Plata Ultra Lite -- a project limited to Indian and M&I uses. Despite this blow to the
hopes of irrigators on the La Plata, the Tribes and water users put forward a proposal very similar
to the Administration's, which Rep. McInnis incorporated into proposed legislation - H.R. 3112.
Sen. Campbell introduced S. 2508, cosponsored by Sen. Allard. The State, tribes, water users,
congressional stafI, and representatives of the Administration resolved their differences relating
to environmental sufficiency language, delinking from additional project facilities, and
repayment by non-Indians and the language changes were incorporated into Sen. Campbell's bill,
S. 2508, which passed the Senate by an 85-5 vote on October 25th. The legislation passed the
House as a rider to an appropriations bill. This was a real team effort on Colorado's part.
There is still much to be done and I look forward to our continuing to work together to
muke the settlement il reality.

.

.