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<br />its expensive efforts in pursuing the water rights first would <br />ultimately be for nought. This is a political decision, not a <br />judicial one, and the Court will not address it further here. <br /> <br />170. The Court also indicated that Applicant would be required <br />during Phase I to prove that there is no legal impediment* nor <br />factual inability with respect to its eliaibilitv to obtain three <br />specific permits and approvals: (a) the right of way which must be <br />issued by the U.S. Bureau of Reclamation to use and occupy land <br />managed by the Bureau of Reclamation; (b) the right of way permit <br />which must be issued by the U.S. Forest Service in order to use and <br />occupy National Forest lands in connection with the Project; and <br />(c) compliance with Section 7 of the Endancrered Species Act before <br />any federal permit, license, or assistance for the Project may be <br />granted. <br /> <br />(* As defined and considered by the Court in Phase I, a "legal <br />impediment" includes any factor preventing the Applicant from <br />obtaining the required approval or permit, or any term or any <br />condition imposed upon a permit or approval which is required <br />as a matter of law, with which the Applicant cannot comply.) <br /> <br />A. BUREAU OF RECLAMATION PERMITS: <br /> <br />171. Various aspects of the Union Park Reservoir Pro j ect will <br />require Bureau of Reclamation land use permits. Having now heard <br />'the evidence, the Court concludes, with one major exception, that <br />as a general rule there are no flat legal bars which would prevent <br />the Applicant from obtaining necessary permits from the Bureau in <br />this case. The major exception relates to the Applicant's proposal <br />to utilize what it calls the Taylor Park Pumping Plant as a part of <br />the Union Park Project. This issue has already been addressed by <br />the ,Court in i153, SUDra, as it relates to the Applicant's decree <br />in case 82-CW-340. <br /> <br />172. It is the law of this case (based upon pretrial orders) <br />that Arapahoe cannot rely on the use of Taylor Park Reservoir to <br />show that water is available for its project, nor can Arapahoe <br />utilize the Taylor Park Pumping Plant unless it obtained consent <br />from the Bureau and from the UVWUA on or before April 15, 1991. <br />(See: ii16 (c) and (d), and 'fil17 and 118 of this Decree.) Arapahoe <br />failed to timely obtain said consents. In its order of September <br />14, 1990, the Court recognized that no person or entity has the <br />right to utilize the water facilities and diversion structures of <br />another water user without the consent of the owner. Any attempt <br />to use said faciliti~s without consent would constitute a trespass, <br />and thus would be illegal. The Court recognizes that in response <br />to the Court's order of 9/14/91, Arapahoe filed its amended <br />application in November, 1990, requesting alternate points of <br />diversion above the high water line of Taylor Park Reservoir on the <br />Taylor River, Texas Creek and Willow Creek. However, based upon <br />the evidence presented at trial , it appears that even if the <br />Applicant does not use the Taylor Park Reservoir as a "forebay", it <br />still intends to use it as an "afterbay" in which to release water <br />so as to maintain certain minimum flows as required by the decree <br /> <br />65 <br />