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<br />e <br /> <br />e <br /> <br />of amendments to a consent decree for water rights cause injury to other water rights <br />h?lders or enlarge a water right, the amendments are not suitably tailored to the change in <br />clfcumstances. <br /> <br />44. The burden of showing absence of injurious effect is upon the applicant. <br />See Rominiecki v. Mcfutvre Livestock COll!:, 633 P.2d 1064, 1068 (Colo. 1981). <br /> <br />17 <br /> <br /> <br />45. Under the proposed Change Applications and Stipulations to Amend, the <br />description of each Tribe's water right is changed to an allocation of water from the ALP <br />"for present and future [M&I] uses with an average annual depletion not to exceed <br />16,525 acre-feet of water." Change Applications; Stipulations to Amend. <br /> <br />46. Depletion, as set forth in the federal documents, is "the amount of water <br />that is not returned to a river system due to project implementation, i.e., the amount <br />diverted minus return flows, plus evaporation loss from new reservoirs or ponds, equals <br />the depletion:.2 Applicant's Ex. 8 (2000 BO) at 2 of 50 n.2. Average annual depletion <br />means "the amount of water depleted each year averaged over a number of years." 3 <br />Applicant's Ex. 5 (1996 BO) at 4 of128 n.2. The term "average annual depletion" is <br />used in the 2000 Settlement Act Amendments in order to conform to the environmental <br />requirements established by the ROD and the 2000FSEIS. The use of the term <br />"depletion" is not the norm in Colorado. See Concerning Application for Water Rights <br />of Midwav Ranches Property Owners' Ass'n. Inc. in EI Paso and Pueblo Counties, 938 <br />P.2d 515,521 (Colo.1997) (operation ofawater right is "through its decreedpoint of <br />diversion in a specified amount, usually expresSed in rate of flow for a diversion right or <br />in acre-feet of water for a storage right." <br /> <br />47. Use of the term "average annual depletion" corresponds to the description <br />of ALP water rights set forth in the 2000 Settleinent Act Amendments. Congress <br />amended the 1988 Settlement Act to provide for a significant reduction in the ALP <br />facilities and water supply under RA 4 in comparison to the ALP facilities and water <br />supply contemplated under the 1986 Settlement Agreement. See Applicant's Ex. 1(2000 <br />Settlernent Act Amendments) at 9301(b)(5). Therefore, the Court fmds that the evidence <br />does not suggest any intent, express or implied, on the part of Congress to expand the <br />quantity of Ute Tribal reserved water rights established in 1991. See Applicant's Ex. <br />1(2000 Settlement Act Amendments); Applicant's Ex. 2&3 (1991 Consent Decrees). <br />The Stipulations for Amendment of Consent Decree are in conformity with the 2000 <br />Settlement Act Amendments, and likewise, do not evidence an intent on the part of <br /> <br />2 In comparison, the 1986 Settlement Agreement defined "consumptive use" as "that quantity of water <br />diverted from the hydrologic stream system and not returned to the hydrologic stream system by either <br />surface flow or percolation." Applicant's Ex. 2&3 (1991 Consent Decrees) at 1986 Settlement Agreement <br />at pp. 61-63 of 164. <br />l In comparison, the ]986 Settlement Agreement quantified water rights on a "per annum" basis, meaning <br />"per water year, with a water year commencing on October ] each year and running through the next <br />succeeding September 30th." Applicant's Ex. 2&3 (1991 Consent Decrees) at 1986 Settlement Agreement <br />at 61 of 164. <br />