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I participated on the Workgroup as a representative of SWCD. Lal group never made final recommendations nor were its conclusions supported by file participants. Since it was never the intention of the Workgroup to preclude water development under the Compact, if ~ instream flow appropriations had been seriously considered, thos(~ appropriations would have (~ been designed to allow development under the Compaet while protecting endangered fish flows J r/ v at the same time. Comparing the effect of the RICD application to the all1eged Workgroup ct ~~~ conclusions is both inappropriate and invalid. ~gJa.J The last sentence of Section A of the Workgroup Report clearly states that instream flow water rights, which includes an RICD, shall not preclude Compact development: ,/ "There ranges, which are shown in columns (G) and (H) of Table 4, should provide the flexibility for full compact development to occur as it normally would under state law and assure that future development opportunities in Colorado are constrained by Colorado's Compact apportionment rather than the instream flow water rights." The Workgroup did conclude that there could be additional Compact depletions in the San Juan River basin of Colorado, including the Animas River basin. The RICD would preclude such depletions in the Animas River basin upstream ofthe RICD. The Wheeler Report also implies that the RICD application would leave adequate water for future Compact development because an average of 422,000 acre-feet per year is available in the Animas River upstream of the RICD which cannot be called by the RICD. This is extremely misleading because the Wheeler Report does not evaluate whether this water is actually physically and legally available. This "excess" water is available only at certain times, such as the 12 hours at nighttime and when river flows are in excess of the RICD water right as ! discussed in the previous methodology. Water in excess of the RICD is not available in all years; for instance, from the summer of2001 to the summer of2003, nearly two years, the RICD would have called all of the water in the river, except at night. Therefore, even though there is theoretically an average of 422,000 acre-feet of Excess Water, essentially none of that water is actually available for Compact development. Durango's attempt to use a ten year old report to prove there is no Compact Impairment is a mis- application of the intent and results of the rep0l1. Further, saying there is 422,000 acre-feet available in an average year does not prove there is not Compact Impairment, it simply proves the theorectical amount of water that might be available if every year had average flow and does not address dry years nor the practicality of using water 12 hours at might. Section 1.B.4 Summary In summary, the RICD will preclude Compact depletions in the Animas River Basin upstream of the RICD that could otherwise occur without the RICD. Each of the methodologies described above shows the RICD would preclude all or some new and existing depletions. The example of the commercial wells shows this most clearly. Therefore, the RICD would impair Colorado's ability to develop its Compact allocation.