PUB00001

• Year: 1992
• Title: Transmountain Diversions in 1992 and Arapahoe County Transmountain Litigation of Gunnison River Water
• Author: Hillhouse/Hultin/Spaanstra, P.C.
• Description: Presentation addressing considerations applicable to a proposed substantial transmountin diversion project and issues about the Gunnison River litigation
• Publications - Doc Type: Historical

case W-1991 is discussed in i123, suora. A separate issue arising
out of the consideration of the decree in 82-CW-340 is the
question: In the absence of express consent of the United States
and the UVWUA, which operate the Taylor Park Reservoir, does the
Applicant have the right to use the Taylor Park Reservoir because
of its established rights under the terms of the decree in 82-CW-
340? For the following reasons, this' Court concludes that the
Applicant does not have such right: .

a. First, the Applicant's attempt to utilize the Taylor
Park Reservoir in the operation of the Union Park Project is
a violation of the Water Supply Act of 1954, 43 U.S.C. S390(b)
which provides that a major operational change in a federal
project requires congressional approval.

b. . As stated above, the applications of the County of
Arapahoe filed herein contemplate the installation and
operation of a pump-generating plant in Taylor Park Reservoir.
This Court has ruled that the Applicant cannot make such an
installation without the written permission of the Bureau of
Reclamation. (Order dated September 14, 1990, p. 14).

c. Applicant has not currently obtained federal approval
of the approval of the UVWUA to alter (a) the water surface
elevation of Taylor Park Reservoir, or (b) the rate at which
water is released from the outlet of Taylor Park Reservoir.
Applicant has failed,to secure the permission of the Bureau of
Reclamation, the UVWUA and/or the Gunnison District to utilize
the Taylor Park Reservoir, or water stored therein, pursuant
to vested water rights. Applican-c has neither applied for nor
obtained authorization from the Bureau of Reclamation to use
either Taylor Park Reservoir or land administered by the
Bureau of Reclamation. (Undisputed Facts No. 23, 62 and 69).

d. Applicant asserts that the decree in Case No. 82-CW-340
provides it with the necessary authority to release water from
Union Park Reservoir into Taylor Park Reservoir and thence
through the outlet works of Taylor Park Reservoir into the
Taylor River to satisfy provisions of the Decree in Case No.
82-CW-340. But, the Court rejects this position for the
following reasons:

1) The Applicant needs the consent of the United States
to utilize the Taylor Park Reservoir, and it has not
obtained that consent. The United States was not a party
to Case No. 82-CW-340. [See decree in Case No. 82-CW-340
(Exhibit 283) at p. 9, Paragraph VIILl.E. (2) ] Even if the
United States had been..a party to Case No. 82-CW-340, the
decree in that case could not have authorized the use of
federal land or facilities. Under Colorado law, a court
adjudicating a water right lacks jurisdiction to determine
that an appropriator has a right of way over the lands of
another. Haines v. Fearnlev, 56 Colo. 243, 246 (1914);
Snyder v. Colorado Gold DredcrincrComoanv, 58 Colo. 516, 518
(1914). The law is the same under the Colorado Water Right

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