Rebuttal Statement of Upper Gunnison River Water Conservancy District; Case No. 4-02CW038

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future substantial projects either; it has merely expressed concern about the impact of the RICD on development of the Subordination Agreement depletion allowance. (See above discussion regaxding compact entitlement.) While the District believes that the impact on this development will be less significant than the River District fears it might be, the River District and the District are continuing to seek agreement on terms and conditions that will satisfactorily address the River District's concern. The concept of maximum utilization of the waters of the state has never been used to deny applications for conditional water rights appropriated for actual projects because they might adversely impact future unknown projects. Indeed, the Colorado Supreme Court has emphasized that unrealistic assumptions about the availabity of water for such conditional water rights in fact undermines the policy of maximum utilization. Thus in Arapahoe County I, the Court, in construing the "can and will" statute, concluded that "[c]onditonal water rights under which no diversions Y1ave been made or are being made, should not be considered, and absolute water rights should be considered to the extent of historical diversions rather than on the assumption that maximum utilization of the decreed amount is the amount used. Our construction of the "can and will" statute is in accord with our prior case law, with the intent of the General Assembly, and with the policy of maximum beneficial use of water." Arapahoe County I at 962. It is contrary to all principles of Colorado water law to limit or deny a conditional water right, even a recreational in-channel water right, on the basis of ideas for future development that do not rise to the level of water right decrees or applications, or even plans or designs. Even if S.B. 216 provides greater latitude by allowing consideration of the impact of an RICD on maximum utilization of the waters of the state, the consideration has to be based on somethin?. In the Pueblo case, numerous opposers presented evidence of pending exchange applications through the Pueblo RICD reach, or commitments to sell water rights or to participate in the Pueblo Reservoir reoperations and enlargement projects that would require exchanges through the reach. Nothing having a level of certainty remotely resembling the concerns of the Pueblo opposers has been identified here as an impact to maximum utilization of the waters of the state. N. Additional Exhibits Exhibit G: Letter Report dated August 26, 2002 by Gary Lacy, Resource Engineering and P1aiuling Exhibit H: Basin map of Colorado River Basin Exhibit I: Basin map of Gunnison River Basin. (These maps are large and therefore have not been provided. It may be inspected at the office of the District's undersigned counsel at reasonable times upon request. 11