Re: Durango's RICD Application, Case No. 7-06CW9

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SIE The Animas River at its confluence with the San Juan has an average annual flow of approximately 670,000 of which is about 33% of the entire flow of the San Juan. Of that amount about 80,000 of comes from the Florida, which joins the Animas near the Stateline and below the RICD. The Animas River therefore provides one, if not the largest, source of water for future development in the San Juan Basin. How much of that actually gets developed in the future is subject to supposition given the considerable energy resources in the basin. The proposed RICD water right would, at least at certain times, cause more water to flow to New Mexico than may otherwise be required under the Colorado River compacts. Thus, Colorado's entitlement to water pursuant to the Colorado River compacts cannot be deemed fully developed merely because there may be some times during some years where water users would be able to develop water above and beyond what the RICD would pull down through this reach of the Animas River. Under the pertinent inquiry, described above, the imposition of an RICD on the Animas River will cause the Animas River to be over - appropriated. Water development upstream of the RICD will no longer be able to occur unless the RICD water right is fully satisfied or the City chooses not to call for its RICD water right. The Gunnison decision provides that the Board should make findings on "whether beneficial consumptive water use opportunities upstream from the claimed RICD would further develop Colorado's compact entitlements and would be impaired by Applicant's sought for stream flow amounts." (Emphasis added). Thus, if new uses of water or exchanges are likely through this reach, Colorado's compact entitlements could be impaired by the RICD water right. This is a pertinent inquiry pursuant to RICD Rule 7.a.v. If there are situations where the RICD would prevent new junior upstream uses or exchanges from locations downstream of the RICD reach to locations upstream of the RICD reach, whereby water users would be impaired from water use opportunities upstream of the RICD, then this Board should find that Colorado's compact entitlements could be impaired. In the present case, there are potential new uses and potential exchange opportunities that could occur from locations downstream of the RICD reach to points located upstream of the RICD reach but for the amounts claimed by the RICD. The Applicant's own analysis demonstrates this. For example, Table 1 of the Wheeler report demonstrates that in the entire period of record examined, from 1928 until 2004, there would have been a call on the Animas River for the RICD water right in every single year. There is not a single year in that period of record where a call by the RICD could not have occurred. Thus, to claim that the water right would not impair Colorado's ability to fully use its compact entitlements is implausible. Similarly, it is illustrative to review the historical records in certain drier years, as compared to the RICD flow rates. In comparing the RICD flow rates to the recorded flows in 2002, for example, the RICD could have called out all uses upstream of the RICD for all but a few days in the fall. One might say that 2002 was an anomaly. Certainly 2002 was an extraordinary dry year. But comparing the RICD proposed flow rates from 2001 through 2003 demonstrates a similar pattern whereby the RICD could have place a call for substantial periods of time. Rule 7.a.ii of the RICD requires this Board to consider the proximity of the RICD to the State line. To date, this Board has never had to consider an RICD as close to the state line as this one. Here, the RICD is approximately 21 miles from the State line with only a couple of small diversions in Colorado below the RICD that could utilize flows potentially protected by the RICD. While the Animas La -Plata pump station ( "ALP ") is just below the RICD, the majority of lands below the RICD are tribal lands. Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning