Analysis of Colorado-Big Thompson Project Operation With Respect to East Slope Diversions and Non-Charge Deliveries

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Maryanne C. Bach Brian Person October 6, 2000 Page S 'The continuance of the non - charge program is also a violation of the 19221 and 1948 Colorado River Compacts, in direct contravention of the requirement of Senate Document 80 that the CBT Project be operated in conformance with such Compacts. Article ill(e) of the 1922 Colorado River Compact provides that Upper Basin States including Colorado may not withhold water which cannot reasonably be applied to dorestic and agricultural uses. ,The term "domestic use" includes the use of water for household, stock, municipal, mining, milling, industrial and other like purposes, but expressly excludes the generation of electrical power. Article IV(b) of the 1922 Compact provides that although water of the Colorado River may be impounded and used for the generation of electrical power, such impounding and use shall be subservient to the use and consumption of such water for agricultural and domestic purposes. Article III of the 1948 Upper Colorado River Basin Compact allocates to the is various states quantities of "consumptive use," and expressly provides in :article 111(b)(2) that "beneficial use is the basis, the measure and the limit of the right to use." Thus, this diversion of water from the Colorado River Basin pursuant to the non- charge program without domestic or agricultural consumptive use on the bast Slope is also a violation of the 1948 Compact. "The non - charge program deprives the Colorado River Basin of native water at the same time it would otherwise be enhancing spring peak flows in the 15 Mile Reach, needed for the recovery of the endangered fish. Water is diverted under the non - charge program in advance of the spring peak and evacuates space in Granby Reservoir. This available space in Granby then fills during the peak runoff season when the reservoir would otherwise be spilling and contributing to spring peak flows. Upper Colorado River Basin water users are being asked to operate projects to enhance spring peak flows in the 15 Mile Reach pursuant to the Programmatic Biological Opinion dated December 1999. The 15 Mile Reach PBO has a specific requirement to enhance spring peak flows during years when the daily peak flow is within the range of 12,900 cfs to 26,600 cfs. Allowing the unnecessary and illegal reduction of natural spring peak flows through the non - charge program undermines the West Slope's willingness to participate in a cooperative solution to the permanent peak flow problem and threatens the continuation of the Recovery