Animas-La PLata Project Environmental Impact Statement

CHAPTER 2
DEVELOPMENT OF ALTERNATIVES
In the evaluation of non - structural components of several alternatives (Section 2.3.2), assumptions were
made about land and water rights acquisitions made by the Colorado Ute Tribes. The purchase of water
rights is subject to Colorado and New Mexico water law. A further discussion of water rights
considerations and constraints is included in Volume 2 of this FSEIS as Attachment D, Water Rights
Considerations and Constraints, Agricultural Land Acquisition Cost Analysis, and Conversion of Fee
Simple Farmland.
2.1.3 Legal and Institutional Constraints to the Purchase of Water Rights
for the ALP Project
This section briefly highlights some of the constraints to implementing a program of purchasing water
rights and the potential interstate leasing of the water. The existing water right laws could represent an
impediment to implementation of the non - binding water uses presented in this FSEIS. A more in -depth
discussion on Colorado Ute Indian water rights is contained in Attachment A which contains the 1986
Settlement Agreement, 1988 Settlement Act, and the Solicitor's Opinion concerning the priority date of
the Colorado Ute Indian water rights. In addition a summary of water right considerations and
constraints is contained in Attachment D.
2.1.3.1 Constraints to the Change of Use of Acquired Direct Flow of Water Rights
and Interstate Leasing of Water
Several legal considerations and constraints that may affect the change of irrigation water rights to M &I
use, include but are not limited to:
1. The need for court approval of the change, with the attendant need for the applicant to
prove non -injury to other water rights from the change and other factors.
2. The need to deal with numerous objectors in the change process.
3. Recognition that the time required for a change can be substantial.
4. Uncertainty of the outcome of a change case, because of the no injury constraint and the
potential for an action that may allow the change of only the historical consumptive use
(or even possibly less than the historical consumptive use) and the need for the change
ruling to include terms protective of other water rights.
Under Colorado water law and the Upper Colorado River Basin Compact, water can be leased into New
Mexico if New Mexico will treat that water as a New Mexico depletion.
2.1.3.2 Administration of Water Rights
The State of Colorado will administer the water rights of the ALP Project used in Colorado. This is
specifically stated in the 1986 Settlement Agreement, Section IV on Administration. Administration by
the Colorado State Engineer shall ensure that the water rights of all users, including the Tribes are fully
protected. Under the terms of the Settlement Agreement, the Tribes agree to allow the Colorado State
Engineer access to Reservation lands solely for the purpose of performing his/her administrative duties
under this Agreement.
2.1.3.3 Ute Indian Reserved Water Rights
The Ute Indian water rights will be held in trust by the federal government. The Solicitor's Opinion is
that both the Southern Ute Indian and the Ute Mountain Ute Tribes have a water right priority date of
2 -15 2.1 INTRODUCTION AND BACKGROUND