ALP 7

PRIVILEGED AND CONFIDENTIAL
COVERED BY MOVING PARTIES' 2004 COMMON INTEREST AGREEMENT IN 02CWSS
Of course, the tribal decrees contain many more terms that are not excerpted in this memo.
Those decrees speak for themselves and need not be fully summarized herein. Additional
selections relevant to the question of injury include:
- "The Court finds that a customary injury analysis cannot be conducted until the
Tribes identify how and where the water will be used." 2006 Decree at 23, para 74,
citing City of Thornton v. Clear Creek Water Users Alliance, 859 P.2d 1348, 1354 -55
(Colo. 1993).
(Note: The State is not asking to perform a customary injury analysis. It agreed
at trial to "no injury" based, inter alia, on Dr. Eisel's opinion, on the future
administration of the A -LP Decrees in priority, on operation of the Project
pursuant to the 2000 FSEIS, and on retained jurisdiction.)
The Court concludes that so long as ALP is operated consistent with the 2000FSEIS,
including maintenance of bypass flows, there is a reasonable degree of certainty
that downstream conditions will be adequate to meet the needs of decreed
Colorado water users and conditional water rights holders under the administration
of the Division 7 State Engineer." Page 32 at Conclusions of Law para 20 (emphasis
added).
- "The Court concludes that administration of the ALP under the prior appropriation
system by the Division 7 Engineer will further protect downstream senior Animas
River water rights from possible injury by future implementation of ALP when it is
operated pursuant to the 2000 FSEIS." Page 32, para 21 (emphasis added).
"The Court further finds that the two Ute Tribes have no independent diversion right
from the Animas River under the 1991 Consent Decrees or their amendments, and
that there can be no increased diversions from the Animas River pursuant to the
requested amendments and changes because the terms and conditions of the
separate ALP Decree are unchanged." Feb 8, 2007, Order at 2a.
"...there is no expansion of a water right, and no injury to other water rights
(including stream conditions) so long as the Ute Tribes take their decreed water right
from the reduced ALP as authorized by Congress in the 2000 Settlement Act
Amendments, which diverts from the Animas River pursuant to the separate ALP
decrees." Feb 8, 2007, Order at 2.e.
LIST OF OPERATIONAL CONCERNS
Nothing has changed since the court's decree to give the Division Engineer further information
on operational details. Many open questions have been discussed extensively before and after
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