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<br />r .' <br /> <br />e <br /> <br />e <br /> <br />calculated until actual use of water is identified); testimony of Bruce Whitehead at trial <br />(depletion factor cannot be applied until the actual use of the water is identified). <br /> <br />53, The Court finds that without knowing the actual application of the water <br />. . . , <br />It IS not posslble to make a reasonable estimate of how much water must be diverted from <br />the Animas River and its tributaries to meet "depletion" allocations ofthe Tnbes as set <br />forth in the 2000 Settlement Act Amendments, Change Applications, and Stipulations to <br />Amend. · <br /> <br />54. Moving Parties presented evidence of the absence of injurious effect to <br />other water rights through the testimony of Dr. Leo Eisel. This Court accepted Dr. Eisel <br />to testify as an expert on the issues of water rights, water supply development, water <br />resources engineering, which include assessing the potential for injury to water rights. <br />Applicant's Ex. 20-58. <br /> <br />55. Dr. Eisel's assessment investigated the potential for injury to water rights <br />on the Animas River from "operation of the [ALP] as configured in the 2000 Final <br />Supplemental Environmental Impact Statement (2000FSEIS)." Applicant's Ex. 20 <br />(Engineering Report) at p. 5 of 13. The Court recognizes that the 2000FSEIS does not <br />include an injury analysis. Testimony of Bruce Whitehead. Because the Ute Tribal water <br />rights are subordinated to the ALP water right, see Applicant's Ex. 2 & 3 (1991 Consent <br />Decrees) at Stipulation to a Consent Decree, n6.A.&7.A., it is appropriate to consider <br />the overall impact ofthe project. <br /> <br />56. Dr. Eisel estimates that the seasonal aquatic bypass flows set forth in the <br />2000FSEIS ("bypass flows") will be sufficient to meet the decreed rights (junior and <br />senior) of water users on the Animas River to the New Mexico state line so long as ALP <br />is operated in conformity with the 2000FSEIS. Applicant's Ex. 20 at 12 of 13, ,r,rl-4. <br />Dr. Eisel based his fmdings upon the three seasonal bypass flows past the Durango <br />Pumping Plant BOR established to mitigate environmental impacts of the ALP under <br />RA4: 225 cfs (April- September); 160 cfs (October-November) and 125 cfs (December- <br />March). Applicant's Ex. 20; see Applicant's Ex. 11 (ROD). <br /> <br />57. . The bypass flows are set forth as an environmental commitment to protect <br />the downstream aquatic habitat, Applicant's Ex. 6 (1996 FSFES) at ll-4l; Applicant's <br />Ex. 11 (ROD) at 21-23 of 29; Moving Parties' Post Trial Brief at 6. However, the bypass <br />flows are not legally protected in Colorado to protect the aquatic habitat as there are no <br />in-stream flow rights associated with the bypass flows. See Moving Parties' Post Trial <br />Briefat 6. Therefore, Moving Parties argue that if bypass flows are available <br />downstream of ALP, they may be diverted by downstream water right holders in <br />Colorado. /d. <br /> <br />58. The Court finds that if the bypass flows are maintained by federal law or <br />regulation and ALP is operated consistent with the 2oo0FSEIS, there is a reasonable <br />degree of certainty that downstream conditions will be adequate to meet the needs of <br />decreed Colorado water users and conditional water rights holders under the <br /> <br />19 <br /> <br />