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

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t recreational in-channel water right will have even less impact on such future development. Thus, to the extent that development of the remaining 33,000 acre-foot depletion allowance occurs in average and above-average years, the evidence indicates that such development will not be adversely impacted by the District's recreational in- channel water right. The District remains interested in working out any differences with the River District conceming the recreational in-channel water right and development of the remaining depletion allowances under the Subordination Agreement. CWCB Staff also appears to contend that development of the alleged 240,000 acre-foot "marketable yield pool" of the Aspinall Unit would be impaired by the District's RICD as well. This, too, is hyperbole. The water stored in this pool is owned by the United States, and, according to the Colorado Supreme Court, could be available for beneficial use by other water users. See, Board of County Commr's of the County o.f Arapahoe v. Crystal Creek Homeowners' Assoc., 14 P.3d 325, 341 (Colo. 2000) ("Arapahoe County II"). In fact, however, the Supreme Court also recognized that the United States' water rights have been fully utilized by the Bureau of Reclamation in accordance with their decrees since their issuance. Id. In order for an interested party to acquire and use this "marketable yield" water, it must be determined that the water sought is in fact available to be sold to that party, and the party must contract with the United States. Id. at 342. The Aspinall Unit's current operations require a large portion of the water stored in the Aspinall Unit to be delivered downstream, as discussed in the River District's rebuttal statement. These commitments may significantly reduce the amount of water that may be available for upstream rnarketing and development. In the absence of any details regarding any planned future upstream development based on exchange of water from the marketable yield pool, it is mere speculation to contend that the District's RICD adversely impacts development of this water, as part of Colorado's compact entitlement. b. Whether the Whitewater Course is Located in the Appropriate Reach of Stream for the Intended Use. No party disputes that the whitewater course is located in the appropriate reach of stream for its intended use. However, the CWCB Staff notes that the Bullocks have questioned whether ice jams could be caused or exacerbated by the whitewater course structures. See Undisputed Fact No. 7 above. Although the Bullocks have speculated about ice jams and flooding, they have produced no evidence to indicate that the whitewater park will or might affect icing or flooding. The District submits that in the absence of any evidence demonstrating that flooding or ice jams would be created or exacerbated by the whitewater park, it is inappropriate to propose special terms or conditions addressing this issue in the Board's recommendation to the water court. The vague expressions of concern, if given credence in the absence of evidence, would render virtually all portions of the Gunnison River inappropriate reaches for a whitewater park. 9