Case No. 03CW86 Joint Motion for Determination of Decree Terms May 2005

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4. If water at or above the foregoing flow rates is- present at the I3oatingPark RICD peleted: reduced quantities are structures at the tunes and on the dates indicated, the proposed Decree states that the City may not then call the Boating Park RICD against any present or future water rights decreed and Deleted: i» the diverting from,_Morrison Creek r an of its tributaries in whole or in cart. As these reduced _ now amounts are greater than the contribution of the Morrison Creek Secondary Source, the Deleted: Secondary Source administration of the Boating Park RICD consistent with this tern and condition does not impose an impermissible selective subordination is enforceable by the City, is administerable by the State Engineer, and will not cause injury to other existing or future water users in the Yampa River basin - 5. Given the foregoing terns and conditions set forth in paragraphs 1 -4 above, the foregoing decretal provisions do not constitute a selective subordination. Instead the City has not appropriated wa from the Excluded Sources or water in excess of the flow rates described in naragr4j)h 3 above from Morrison Creek and its tributaries. However, even if the Court Deleted: eid,eror�od, determines that any of para_graphs_6c, 6d� 7b amount to s_ elective subordination §, such subordinations are lawful. Deleted: ana Selective Subordinations Are Lawful 6. in Perdue v. Ft. Lyon Canal Co., 184 Colo. 219, 519 P.2d 954, 956 -57 (1974), the Supreme Court confirmed that a more senior water right was to be treated as junior to another water right, and only that one other water right, by virtue of an agreement between the parties. This is a selective subordination, or what the State refers to as a "classic" selective subordination, because the Supreme Court determined the subordination was created by virtue of a contract (license). Id. As a result, the subordination can only apply to the parties to that contract/license, and no others. 7. The case of Board of County Conrnr'rs of Arapahoe County v. Crystal Creek Honreowners'Ass'n., 14 P.3d 325, 329 (Colo. 2000) is even stronger authority for judicial approval of selective subordination. In that case, the Supreme Court was reviewing a determination of water availability, and the 60,000 acre foot subordination made by the United States was a part of that analysis. Arapahoe County argued that the United States subordinated its senior rights to all upstream junior appropriators. Id, at 340. The water court and the Supreme Court disagreed, holding instead that the United State's subordination was a selective subordination, applicable only to in -basin water users. Id. at 340 -41. In fact, this selective subordination was "selective" in two additional ways. First, it was applicable only to junior appropriators in the Upper Gunnison River above the Aspinall Unit. Id, at 340. Therefore, in- basin users below the Unit did not benefit from the subordination. Second, it applied only to the first 60,000 acre feet of junior depletions, but no more. Id. Asa result, other junior upstream appropriators on the Gunnison River must demonstrate that there is still some portion of that 60,000 acre foot "pool" available, or else they are not entitled to the benefits of that selective subordination and plight not be able to appropriate a new water right. See, e.g., Mt. Emmons Mitring Co. v. Town of Crested Butte, 40 P.3d 1255, 1260 (Colo. 2002). 81 The Supreme Court defined a selective subordination as a "subordination by a senior water user to certain junior water users while, at the Sallie time, the senior user denies such fd9U71