C.R.C.P. 26(a)(2) Disclosures of The CWCB, Case No. 02CW38

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• C 1 • A. First, the entitlement is to consumptive use of water for beneficial purposes. Thus, non - consumptive uses such as hydropower, instream flows administered by the Colorado Water Conservation Board, or in- channel uses such as RICD water rights, do not count against Colorado's entitlement. The adjudication and administration of an RICD water right, in and of itself, does not develop and place to consumptive beneficial use any of Colorado's entitlement to Colorado River water. Any impairment to the development of Colorado's Compact entitlement occurs as the result of lost development opportunities under upstream junior water rights or exchanges that maybe affected by the administration of the RICD water right's priority. B. Second, Colorado's entitlement under the "Law of the River" is made to the state as a whole. Although there are some specific obligations with respect to individual river systems in Colorado through the Upper Colorado River Compact, (e.g. the Upper Colorado River Compact recognizes the La Plata River Compact, and makes apportionments of the waters of the Little Snake River, the Yampa River, and the San Juan River) Colorado is generally free to develop its Compact entitlement in all or any one of the tributaries to the Colorado River in accord with Colorado Water Law. Except for certain operations of the Aspinall Unit, Colorado has no "Law of the River" obligation or allocation specific to the Gunnison River. The effect of the proposed RICD water right on junior water rights or exchanges upstream of the whitewater course in the Gunnison Basin means development of Colorado's remaining entitlement must occur elsewhere in the Gunnison Basin or from other portions of the Colorado River Basin. However, the use of such water may occur anywhere within the State. The difficultly° is that those development opportunities are limited by water 'development that has already • occurred. In particular, with respect to transmountain diversions, there are already 25 transmountain diversions in Colorado which take between 400,000 and 60€0,000 acre - feet annually from the Colorado River Basin and deliver it to the South Platte, Arkansas and Rio Grande Basins for the benefit of Colorado's citizens. The Gunnison and possibly the Yampa Basins contain the only remaining potential projects that might be possible with relatively small pumping and construction costs. Other transmountain diversion projects are being considered, but they will certainly involve considerably greater pumping and construction costs. Again, in my opinion, given the considerationsin the RICD statute these options should not be foreclosed by the proposed RICD. C. Third, the amount of water available for consumptive use in Colorado is greatly affected by hydrology. The "Law of the River" imposes a fixed obligation on the Upper Basin to assure flows to the Lower Basin of at least 75 maf during every running ten -year period. Colorado's 51.75% share of the Upper Basin's allocation thus represents a share of the hydrologic "leftovers" to which the Upper Basin as a whole is entitled under the Colorado River Compact. The most recent "Hydrologic Determination" of water available to the Upper Basin was done by the U.S. Bureau of Reclamation in 1988 and found that only 6.0 maf was available to the Upper Basin. Colorado's share, after allowing for 50,000 acre -feet for Arizona, is 3,079,125 acre - feet. When the Upper Colorado River Basin Compact was negotiated and assuming 7.5 maf was available to the Upper Basin, Colorado's share would be 3,855,375 acre - 9of17