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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17. The Court concludes as a matter oflaw that the 1991 Consent Decrees
limit ALP diversions from the Animas and La Plata Rivers on behalf of the Southern Ute
Indian Tribe to a maximum of 26,500 acre-feet per annum of municipal and industrial
water, as measured at the points described in paragraph 7.A.i. See Applicant's Ex. 2&3
(Stipulation for a Consent Decree) at '7.A.i.a. Explicitly limiting ALP diversions made
on behalf of the Southern Ute Indian Tribe to a maximum of 26,500 acre feet per annum
of municipal and industrial water will preserve the stream conditions as contemplated in
1991 when the water rights were decreed by consent. See Applicant's Ex. 2&3 (1991
Consent Decrees). Therefore, there is presently no evidence of any injurious impacts
resulting from approval of the Stipulations to Amend in relation to the Southern Ute
Indian Tribe. .

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IS. Until the water is applied to actual M&I uses, the Court is unable to fully
assess the impacts that may result from approval of the Stipulations to Amend and the
Change Applications. In order to ensure that the Ute Tribes' water rights will be applied
to actual beneficial uses, this Court may require the Tribes to report on their progress
towards application of their water rights toa beneficial use. See U.S. v. City and County
of Denver. By and Through Bd. of Water Com'rs. 656 P.2d I, 35 (Colo. 1982); see also
City of Thomton v. Biiou Irr. Co., 926 P.2d 1,44 (Colo.1996). In addition, the question
of injury must be reconsidered following completion of ALP and delivery of water to the
Tribes for beneficial use. See C.R.S. S 37-92-304(6). The Moving Parties anticipate that
the Tribes' ALP water will be available by January 1,2009. Therefore, it is reasonable
for the Court to retain jurisdiction pursuant to c.R.S. 9 37-92-304(6) until December 31,
2009.

19. As to the La Plata River, as this Court has recognized, a "proposed change
affecting an importing basin in a transbasin diversion is not a legally cognizable "injury"
under Colorado state law." Mar 7 Order at 28-29. As a matter oflaw, the Motions to
Amend and Change Applications, which change the source of the Tribes' ALP water to
the Animas River rather than the Animas and La Plata Rivers, do not create a legally
cognizable injury to La Plata Basin water rights under Colorado law.

20 The Court concludes that so long as ALP is operated consistent with the
2000FSEIS, including maintenance of bypass flows, there is a reasonable degree of
certainty that downstream conditions will be adequate to meet the needs of decreed
Colorado water users and conditional water rights holders under the administration of the
Division 7 State Engineer.

21. The diversion and storage rights for the ALP, as decreed in Case No.
80CW237, have a priority date of September 2,1938, and an adjudication date of March
21, 1966. Applicant's Ex. 20 at 13 of 13, ,r 8. The Court concludes that administration of
the ALP under the prior appropriations system by the Division 7 Engineer will further
protect downstream senior Animas River water rights from possible injury by future
implementation of ALP when it is operated pursuant to the 2000FSEIS. Id.

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