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

Home Browse Search

used above the Gunnison Course, such change in use, in addition to being subject to Colorado's no-injury rule, would require that proper anangements be made with the United States. Id. at 342 (party must contract with the United States for use of Aspinall Unit water). Under Vidler, it is inappropriate to consider a hoped-for change in Aspinall operations in awarding water rights for the RICD. Similarly, future use of Gunnison River water to satisfy Fish and Wildlife Service minimum flow recommendations or reserved rights for the Black Canyon of the Gunnison National Park should not interfere with adjudication of the Applicant's right. See id. B. Injury to Existing In-Stream Flow Rights In its discussion of in-stream flow water rights, the Staff states that, unless the Applicant were to consent to such a condition, the Staff agrees with TU's suggestion that the CWCB not recommend subordination of the undecreed off-stream diversion in the West Branch to the RICD water right. Staff Prehearing Statement at 7. The Staff misstates TU's position. The suggestion TU has made is that the CWCB not recommend subordination of the RICD right to the West Branch; TU is not concerned about subordination of the West Branch to the RICD right. 77I Prehearing Statement at 2. Based on the Staff's discussion, TU believes that the Staff understands and agrees with TU's suggestion, but simply made a misstatement. C. Maximum Utilization of the Water of the State The Staff, NERC and the River District argue that the RICD right could impede maximum utilization of the waters of the state. Staff Prehearing Statement at 7; NERC Prehearing Statement at 1; River District Prehearing Statement at 2-3. In the Pueblo proceeding, the CWCB rejected similar arguments concerning maximum utilization of the state's waters. Findirrgs of Fact and Final Recommendation of the Colorado Water Conservation Board to the Water Court, Water Division 2, Case No. 0 1CW160. The Colorado Supreme Court has stated that maximum utilization involves "maximizing the use of Colorado's limited water supply for as many decreed uses as possible consistent with meeting the state's interstate delivery obligations under United States Supreme Court equitable apportionment decrees and congressionally approved interstate compacts." Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1150 (Colo. 2001). Additionally, the court has held that: The policy of maximum utilization does not require a single-minded endeavor to squeeze every drop of water from the valley's aquifers. C.R.S. § 37-92-591(2)(e) makes clear that the objective of "maximum use" administration is "optimum use." Optimum use can only be achieved with proper regard for all significant factors, including environmental and economic concerns. See C.R.S. § 37-92-102(3). Alamosa La-Jara Water Users Protection Ass'n u Gould, 674 P.2d 914, 93 5(Colo. 1983). The Gunnison Course places the water of a highly-appropriated river to additional legally recognized beneficial use without injury to any existing absolute or conditional water rights.