Rebuttal Statement of Trout Unlimited: Case No. 4-02CW038

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similar arguments in the PuebYo proceeding, the CWCB found that adjudication and administration of the RICD right would not create such an impediment. Findings of Fact and Final Recommendation of the Colorado Water Conservation Board to the Water Court, Water Division 2, Case No. O 1 CW 160. The Gunnison Course, like any RICD, is non-consumptive and will have no effect on existing or future downstream uses of water. The course is located approximately 150 miles from the Utah state line, and there is ample opportunity below the RICD reach to fulty develop and consumptively use any water to which Colorado is entitled. With respect to future upstream direct flow, storage or exchange rights, the RICD will function as a consumptive use. The impact of the proposed RICD right on upstream uses is mitigated, however, by several factors. First, as the Colorado Supreme Court has found, there is little unappropriated water in the Gunnison River. Board of County Comm'rs of the County of Arapahoe v. Crystal CreekHomeowners'Ass'n, 14 P.3d 325, 331-35, 334 (Colo. 2000). Thus, irrespective of the proposed RICD right, the opportunity for future water development above the RICD reach is limited. Second, the Applicant has claimed flows "well below the average flows in the river." Applicant Prehearing Statement at 7. By doing so, the Applicant has provided the opportunity for future upstream use of the quantity of water in the river beyond the Applicant's appropriation, to the extent this water is otherwise available. Third, the Applicant has sought water rights for only five months of the year, creating no interference with upstream use during the remainder of the year. Id. Despite these mitigating factors, it is true that the RICD right could call out upstream juniors, including, as the Staffand the River District note, those not otherwise subject to call by the Bureau of Reclamation's Wayne N. Aspinall Unit by virtue of the Agreement Among the United States of America, the Colorado State Engineer, The Colorado River Water Conservation District, and the Upper Gunnison River Water Conservancy District for the Administration of Water Pursuant to the Subordination of Wayne N. Aspinall Unit Water Rights Within the Upper Gunnison River Basin (the "Subordination Agreement"). Protection of senior appropriators is the cornerstone of Colorado's prior appropriation system under which priority is given to those who first manifest intent and ability to make a proposed diversion. In Colorado River Water Conservatron District v. Vidler Tunnel Water Co., 594 P.2d 566, 568 (Colo. 1979), the Colorado Supreme Court expressly repudiated consideration of speculative, future water uses in awarding water rights. This aspect of Colorado law is not altered by S.B. 216 or the fact that a future use may otherwise be protected by a subordination agreement.3 The same is true of the 240,000 acre-feet of water in the Aspinall Unit that the Staff cites as "mostly unallocated." StaffPrehearing Statement at 6. The United States hold decrees for this water and has the right to use it for decreed purposes. Crystal Creek Homeowners' Ass'n, 14 P.3d at 335. The Bureau of Reclamation has, in fact, been using the full amount of its decrees for such purposes. Id. at 341. While the Staff may hope to see Aspinall water consumptively 3 Because it would constitute an aberration from the prior appropriation doctrine, TU opposes the River District's suggestion ihat the RICD be subordinated to the 60,000 acre-feet of water subject to the Subordination Agreement. River DistrJct Prehearing Statement at 3. 4