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

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M Rule 7.a.iii provides that the Board may consider the proximity of the RICD to suitable upstream points of diversion or storage which may be utilized by those who would place the water to consumptive beneficial use. Most of the uses in the Animas River basin today occur upstream of the proposed RICD, with the exception of ALP and a couple of small diversions downstream. If the RICD is decreed as applied for, it would cause any new uses to find augmentation water. Using flow data from the applicants own hydrology study indicates that the proposed RICD could call for water in virtually every year and in dry years, such as 1977, would be calling 265 days or more. The likely result is the Animas River will come under full water right administration. Rule 7.a.iv calls for an examination of the existence of suitable downstream points of or storage for consumptive beneficial uses before the water leaves the state. As described above, these types of opportunities are minimal. Rule 7.a.v suggests that the Board may explore whether there are exchange opportunities within the state that may be adversely impacted by the existence of the RICD. The most foreseeable future exchange opportunity that could be adversely impacted by the proposed RICD would be the exchange of ALP water upstream. While exchange opportunities exist daily during the 12 -hour period that the RICD would not be used, the Division Engineer has indicated that the administration of such would be difficult given the natural fluctuations that occur throughout the year. Rule 7.a.vi. provides that the board may consider whether the basin is over - appropriated. Here, the situation is exceptionally dramatic in that the basin is not currently over - appropriated, but with the RICD water right the basin will become over - appropriated. The Applicant's hydrology study demonstrates how this basin would likely become over - appropriated based on the fact that river calls are possible virtually every year. Rule 7.a. vii states that the Board may consider the effect on other decreed, existing undecreed, or reasonably foreseeable uses of the amount of water claimed. The Office of the Division Engineer has indicated that there are a large number of undecreed water rights upstream from the RICD, which are mostly domestic wells. Certainly the RICD would have an effect on these undecreed wells, as well as reasonable foreseeable new domestic wells. Rule 7.a.viii, suggests an examination of whether a RICD shields waters from a consumptive use that would otherwise be available under a particular compact. For the reasons noted above, the proposed RICD certainly could shield, from development, water that is presently available for use under the Colorado River compacts. The applicant references the, "Final Report, Colorado River Compact Water Develop Projection" dated November 2, 1995 by the Endangered Fish Flow and Water Development Workgroup as evidence that the RICD would not impair Colorado's ability to develop its compact entitlements. We disagree. The 1995 report was never adopted as a method for determining whether or not there was potential for compact impairment. The 1995 report was done to see if the there was enough water available to develop a potential methodology to appropriate flows for endangered Colorado River fish and do so on some type of an equitable basis. It proportioned future consumptive uses in proportion to the natural flow originating in each basin. Based on that formula, it concluded that such was possible and the information in the 1995 report was used to develop a concept for trying to make appropriations for endangered fish instream flows, which was not part of the report. Applications were eventually filed for a baseflow amount, a carve - out was then provided for which was large amount enough to assure development of Colorado's full compact apportionment of up to 3.855 maf. A 2" application was then filed seeking to protect flows that were in excess of Colorado's Colorado River apportionment. The applications included enough provisions and protections to assure full development could occur and were flexible enough to allow Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning