ALP 7

PRIVILEGED AND CONFIDENTIAL
COVERED BY MOVING PARTIES' 2004 COMMON INTEREST AGREEMENT IN 02CW85
2006 about what operations are allowed by the combination of the tribal change decrees and
the A -LP Decrees held by SWCD. While the A -LP protocol attempts to resolve some of these
operations there remain operational concerns that cannot be addressed without actual
operations. The State's intent is to maintain its proper role in this balancing of several
sovereigns' interests by maintaining its prior position on the important issue of preventing
injury; i.e., that retained jurisdiction until operations can be observed is a necessary tool to
ensure the protective terms and conditions work as expected.
Operations inconsistent with the intent of the decrees could cause water administration issues,
injury questions, and potential litigation. To avoid these issues the parties should attempt to
resolve operational concerns. The State has reviewed the decrees and history and has the
following operational concerns:
1. Quantity of use: how will the depletion limitation in the tribal decrees be measured and
enforced?
2. Points of diversion: where will the Tribes water rights be diverted, and what extra water
court authorization is needed for alternate points of diversion from the Animas River?
3. Rates of diversion: what are the appropriate flow rates for diversion of the Tribal
rights?
4. Timing of diversions: how will the Tribal water right demands vary throughout the year.
5. Point of measurement: There is potential for disagreement on what flow rate can be
measured for the Tribal water rights at the DPP, and how that interfaces with the flow rate for
pumping at the DPP and with bypass flow requirements.
6. Changes from BOR Assumptions: The Tribes and other parties could disagree on what it
means to operate "pursuant to" or "consistent with" the 2000 FSEIS, as required by the decree.
7. Changes to bypass flow requirements: The court required notice before any change to
the bypass flow requirements. Without retained jurisdiction, it is not clear what would happen
next. Injury would need to be considered and prevented. Retained jurisdiction would allow a
stipulated arrangement among the parties to the four cases regarding such changes.
IDEAS TO PURSUE
During the September 4 meeting, SWCD suggested narrowing the purpose of retained
jurisdiction to cover only specified sub - topics rather than broad "injury." The State thinks this
could be a viable option and, in the interest of filing a joint or unopposed motion, is interested
in quickly pursuing this option to see if it leads to a unified result.