ALP 7

PRIVILEGED AND CONFIDENTIAL
COVERED BY MOVING PARTIES' 2004 COMMON INTEREST AGREEMENT IN 02CW85
At the meeting on August 20, the Southern Ute Tribe and United States requested a written list
of the Engineer's operational concerns, i.e., the reasons why /how operations under this change
decree could potentially cause injury. This memo was developed to convey that list after
summarizing related background for context. Before this memo was finalized, the State met on
September 4 with the Ute Mountain Ute Tribe and SWCD representatives who were unable to
attend on August 20. This memo was then expanded to address their additional questions and
suggestions.
SUMMARY OF 2006 INJURY ANALYSIS
The July 29, 2005 expert report by Brown and Caldwell titled "Engineering Report on Purported
Injury to Water Rights from the Animas -La Plata Project" was paid for by the State and the
other four Moving Parties. It used a water balance analysis to determine the potential for
injury to Animas River water rights from operation of the Animas -La Plata Project as configured
in the 2000 FSEIS. It concluded that "there are available flows which can be diverted to the
2000 FSEIS A -LP Project without injuring Animas River water rights." Report at 1.
Brown and Caldwell used a 69 year study period (1933 to 2002) to determine that historic total
average daily flow at the Durango gauge (1.75 miles upstream of the DPP) was 788 cfs. Id. at
Table 1. They identified all decreed water rights, including conditional and absolute, diverting
from the Animas River diverting from below the Durango gauge down to the New Mexico
stateline (plus some wells). Id. at 3. They sorted those water rights by use and created realistic
demand schedules for each use category, based on Hydrobase historic diversion records. Id at
3. They established the monthly demand from all those conditional and absolute rights
downstream of the DPP. Id. They concluded that the "total decreed diversion for water rights
from the Durango Gage to the Stateline" was 129.80 cfs. Id. at Table 1. They concluded that the
required minimum bypass flows at the DPP "were sufficient to protect all decreed water rights
on the Animas river (senior and junior priorities, conditional and absolute surface diversion
rights, and wells) downstream from the Durango gauge from injury resulting from diversion at
the DPP for the 2000 FSEIS A -LP Project for the study period (1933 through 2002)." Id. at 8
(Conclusion # 1). They also concluded that "diversion and storage rights for the A -LP Project, as
decreed in Case No. 80CW237, have a priority date of September 2, 1938 and an adjudication
date of March 21, 1966. Administration of the prior appropriations system by the Division 7
Engineer will further protect senior Animas River water rights downstream from the Durango
gauge from possible injury by the 2000 FSEIS A -LP Project." Id. at 9 (Conclusion #8).
The court's summary of this analysis was that "Dr. Eisel estimates that the seasonal aquatic
bypass flows set forth in the 2000FSEIS ( "bypass flows ") will be sufficient to meet the decreed
rights (junior and senior) of water users on the Animas River to the New Mexico state line so
long as ALP is operated in conformity with the 2000FSEIS." 2006 Decree at 19, para 56. The
court found that "if the bypass flows are maintained by federal law or regulation and ALP is
operated consistent with the 2000FSEIS, there is a reasonable degree of certainty that
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