WSPC12924

• File Number: 8230.400.31.F
• Description: Avon RICD
• State: CO
• Title: Related Reports
• Water Supply Pro - Doc Type: Report/Study

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72. Pursuant to the 1991 Consent Decree. the Southern Ute Indian Tribe is
entitled to receive and beneficially use a maxiIDum of26,500 acre-feet per annwn of
municipal and industrial water and a maximum of3,400 acre-feet per annum of
agricultural irrigation water "as measured at Ridges Basin Dam and Reservoir or at the
point on the Animas River where diversions are made to the Durango Pumping Plant."
See Applicant's Ex. 2&3 (Stipulation for a Consent Decree) at '7.A.i.a. The Southern
Ute Indian Tribe did not apply to change the use of its 3,400 acre-feet per annum of
agricultural irrigation water to M&I use because "the Southern Utes had a significantly
large enough M&I allocation at the outset," i.e., established by the 1991 Consent Decree.
Tr. April 21, 2006, at 30 (Argument of Scott McElroy). Thus, the Court reasonably finds
and infers that the quantity ofM&I water established in 1991 for the Southern Ute's M&I
uses is adequate to meet the depletion aJlowance established in the 2000 Settlement Act
Amendments, and correspondingly, in the Stipulation for Amendment to Consent Decree.

73. Any objection to the term "depletion" in relation to the reserved water
rights ofthe Tribes (in the Stipulations to Amend and in the Change Applications) is
overcome by expressly limiting ALP diversions from the Animas River on behalf of the
Tribes to the quantities ofwatf~r established, respectively for each of the Ute Tribes. in
the 1991 Consent Decrees. Applicant's Ex. 2&3 (1991 Consent Decrees) at Stipulation
for a Consent Decree, ,-[6 and 'i12.D (UMU) and ~7 (SUIT); see In re Aoolication for
Water Rights of U.S., supra.

74. The Court finds that the 2000FSEIS identifies only non-binding uses of
the Tribes' ALP water rights, and the Tribes have not identified any actual contracts or
commitments with respect to use of the water rights which are the subject of the Motions
to Amend and the Change Applieations. The Court finds that a customary i~ury analysis
cannot be conducted until the Tribes identify how and where the water will be used. See
City of Thornton v. Clear Creek Water Users Alliance. 859 P.2d 1348. 1354-
1355 (Colo.1993). Therefore, it is reasonable that the 2000FSEIS does not contain an
injury analysis and the State Engineer's office did not submit an i~ury analysis with
respect to Ute Tribal water rights which are the subject oftbe Stipulations to Amend and
Change Applications herein.

75. Bruce Whitehead recommended that the Court impose two conditions
upon these amended decrees in order to avoid injurious impacts as a result of the
amendments and changes to the decrees. See c.R.S. ~ 37-92-305. Because the water is
not yet applied to actual uses, Mr. Whitehead recommended that the Court impose a
reporting requirement and a period of retained jurisdiction. See C.R.S. ~ 37-92-304(6).

76. The Tribes' reServed water rights are immune from Colorado's non-use
requirement to the extent necessary to fulfill the purposes of the reservation. U.S. v. City
and County of Denver. Bv and Through Bel. of Water Com'rs. 656 P.2d 1,34 (Colo. 1982)
(citations omitted). Nevertheless, ColOrado law requires that the Tribes use reasonable
diligence in developing their allocations of ALP water. Id; See C.RS. ~ 37-92-301 (4).
Congress has authorized monetary appropriations to complete construction of ALP by
December 21,2007. Applicant's Ex. I (2000 Settlement Act Amendments) at ~ 17. The

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