Durango RICD, Supplement to My Expert Report of December 29, 2006

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Durango RICD D. Randolph Seaholm Supplemental Report February 20, 2007 • Page 3 of 4 development. As noted in my expert report, the impact of these large RICD rights is having a significant impact on Colorado's ability to develop its remaining compact apportionment and this impact needs to be seriously considered. At the very least, RICD's should all contain a significant and meaningful dry year call limitation provision and provide the opportunity to develop at the very least a significant portion of Colorado's remaining compact apportionment. An essential part of allowing for the development of Colorado's remaining apportionment is to maintain as much flexibility as possible for that development to occur, not put a few communities in control of the future development that is possible upstream of them. Water Rights: Wheeler and Associates have prepared lists of water rights showing a substantial number of water rights both upstream and downstream of the boating park and RICD. While the list is reflective of the water right tabulation prepared by the State Engineers Office, it is not the State Engineer's tabulation and as a result is very misleading as it does not reflect the use actually made of absolute water rights or whether or not those water rights are alternate points of diversion for an original water right or perhaps limited by terms of the decree such as the rights for ALP are. With respect to the conditional water rights list prepared by Wheeler and Associates, it also does not reflect the use that will be made of that water right or any limitations that the decree may . have imposed on the water right. Also, often time's conditional water right claims have been made for water at the same location and thus only one can likely be developed. These conditions can not be determined from the lists prepared by Wheeler and associates. Thus, while the amounts may appear to be significant, the conclusion that there is significant and adequate upstream or downstream development opportunities cannot reasonably be made without reviewing the tabulation and decrees carefully to get a true understanding of the impact and opportunity they provide. This has not been done by Wheeler and Associates and therefore the list of water rights they have prepared must be used and considered with these understandings and limitations. By way of example, Wheeler's list shows water rights for diversions at Howardsville and Silverton in case number 05CW88 as being below the RICD. Clearly these diversions would be above the RICD. The question then becomes are these alternate points of diversion for a previously decreed diversion and what limitations have been placed on them, such as those contained in the ALP decrees. If they are alternate points of diversion, have they been double counted in Wheeler's list? As stated previously, this list should be used with caution and begs the question of why they didn't perform their analysis using the entire State Engineer's tabulation instead of just selected portions. CWCB derivation of the proposed 30,000 AF development allowance: I want to be perfectly clear that the 1995 "Colorado River Compact Water Development Project Final Report" does not in any way seek to modify Colorado water law, which is based on the prior appropriation • doctrine. Rather it presented a proportionality concept for distributing Colorado's remaining apportionment among the major river basins. The concept was premised on the major assumption that Colorado's remaining compact apportionment could be distributed among the Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning