Colorado's Plan for Future Depletions (3)

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PLATTE RiVER RECOVERY IMPLEMENATION PROGRAM ` Attachment 5 Section 9 COLORADO'S PLAN FOR FUTURE DEPLETIONS' October 24, 2006 Colorado will be responsible for mitigating the impacts of new water related activities in Colorado on the associated habitats, in the manner described below.2 As part of the proposed Program, the mitigation described below shall constitute the means for mitigating new water related activities in Colorado, except for water related activities pursued by entities electing not to participate in the Program. Subject to the planned NEPA and ESA reviews, the Department of the Interior ("DOI") agrees that Colorado's Future Depletions Proposal is a sufficient contribution by Colorado to offset the impacts of new water related activities in.the South Platte River Basin in Colorado. If Colorado implements the mitigation program described below, new water related activities in Colorado will not adversely affect the "Current Regime of the River," as that term is used in the document entitled "An Environmental Account for Storage Reservoirs in the Platte River System in Nebraska," (Program Attachment 5, Section 5). For purposes of this document, "new water related activities" shall be used as that term is defined in the Platte River Recovery Implementation Program (Program Document), footnote 3. New water related activities shall not include augmentation for wells existing pre-June 30 1997, provided the augmented wells do not increase irrigated acreage beyond that irrigated on June 30, 1997.3 ' In the Cooperative Agreement and the Program Draft EIS, the Colorado Plan for Future Depletions was referred to as Tamarack Il. 2 Colorado offers this agreement as part of its efforts to resolve endangered species conflicts through a negotiated and mutually agreed upon basirnwide cooperative agreement and recovery program. Nothing in this agreement constitutes an admission by Colorado that any depletion to the North or South Platte Rivers or their tributaries in Colorado that have occurred or may in the future occur adversely affect or reduce state line flows. Similarly, Colorado does noC admit that any changes in the amount or timing of flows at the Colorado-Nebraska or Colorado- Wyoming state lines that have occurred or may in the future occur reach or adversely affect endangered species habitat in Nebraska. This agreement is not intended, and should not be construed, to amend or modify the South Platte River Compact or any interstate decree, pr to waive any rights thereunder. 3 Prior to 2003, ground water users in the South Platte River Basin augmented their out-of-priority depletions with administratively approved annual substitute water supply plans. In 2003, the Colorado General Assembly required these ground water users to transition to a system of court-approved plans for augmentation. The applications for approval of the court-approved plans for augmentation must be filed with the water court no later than December 31, 2005. The courts may need a number of years to approve the proposed plans, during the interim the ground water users will con[inue to operate pursuant to administratively approved substitute water supply plans. Because the court-approved plans are permanent, the replacement obligations contained in those plans may be more stringent than those included in the administratively approved plans. In order to resolve a potential controversy concerning whether the use of ground water under more stringent terms constitutes an expansion of an existing project, the parties to the Cooperative Agreement, based on the assumption that the court approved augmentation plans will not result in increased consumptive use in Colorado, have agreed that wells in existence prior to June 30, 1997 and the ! augmentation sources for those wells included in any court-approved plans for augmentation will be deemed existing uses of water and not new water-related activities as long as the augmented wells do not increase irrigated - acreage beyond that irrigated on June 30, 1997. October 24, 2006 Colorado Depletions Plan