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

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obtained for the Union Paxk Reservoir project in Case No. 82CW340 is a decree for storage of 325,000 acre-feet of water for in-basin, non-consumptive power generation purposes. This conditional water right, if still valid, is senior to the District's recreational water right, and therefore would not be impaired. Next, Natural Energy contends that the District's right could foreclose or impair opportunities to store Colorado's wet year flood flows at high altitudes. Natural Energy provides no indication that this is so, and, in any event, identifies no pending or contemplated projects for such storage. The District notes that each flow rate it has appropriated for the RICD is less than the average flows at the Gunnison gage near Gunnison during the time period identified. It is unlikely that a call would be placed for the District's right when wet year floods were available for storage at high altitudes, even if some such storage project were developed. Furthermore, the District's water right is limited to five months of the year, and the District has also agreed not to operate the water right at night.. Presumably, therefore, water could be stored under a junior decree in a high-altitude storage facility (should one actually ever be planned and constructed) at any time during seven months of the year, and at night every month. The River District expresses concern about protection of the depletion allowance of 60,000 acre-feet under the Subordination Agreement. Of this amount, 20,000 acre-feet is below Blue Mesa Reservoir, and 40,000 acre-feet is above Blue Mesa Reservoir. The prehearing statements of the CWCB Staff and the River District state that the District's water right could interfere with development of these depletion allowances. Although the District does not deny that the RICD water right will impact other water users, the evidence indicates that there are conditions under which development of the depletion allowances can occur, so the District's requested recreational water right will not impair even this aspect of development of the state's compact entitlement. The 20,000 Acre-foot Depletion Allowance The CRWCD posits that the District's water right could adversely affect the development of the 20,000 acre-foot depletion allowance if such development involves an exchange of water upstream of the Guruiison Whitewater Course or otherwise involves reservoir operations upstream of the proposed Gunnison Whitewater Course. No such development has been specifically identified, and it would seem equally if not more possible that such development would occur either by direct diversions and storage below Blue Mesa Reservoir or by exchanges and reservoir operations at Blue Mesa Reservoir. At any rate, there is no evidence that the District's water right would cause an adverse impact on development of the 20,000 acre-foot depletion allowance. First, to the extent that the 20,000 acre-foot allowance is developed by direct diversions or storage occurring below Blue Mesa Reservoir or by exchanges and reservoir operations at Blue Mesa Reservoir, the District's non-consumptive water right will not interfere with such development. Second, in order to effect the contemplated development by virtue of an exchange or reservoir operation upstream of the whitewater course, it would be necessary 7