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

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177. Mr. Johnston, also testified that the procedure followed
by the Bureau of Reclamation upon receipt of an application is that
the Bureau reviews the application and prepares the right-of-use
document with conditions to be imposed to assure that the proposed
right-of-use will not interfere with the functions of reclamation
or its ability to maintain its facilities. If the conditions are
acceptable to applicant the analysis required by the National
Environmental Policy Act, 42 U.S.C~ S4332 is. performed. If the
conditions are not acceptable to the applicant, then there is no
need to do a NEPA analysis. If the initial conditions are
acceptable 'to the applicant, the NEPA analysis may result in
imposition of additional conditions.

178. The conditions identified in the United States' Exhib-
it 2220 are the conditions which Mr. Johnston indicated would be
imposed with respect to the Applicant's Project. The Opposers urge
that said conditions are non-discretionary conditions which must be .
considered by the Court in determining water availability to the
Applicant's project. And they argue that nothing in the National
Environmental Policy Act, 43 U.S.C. S4321, et. seq., or other law
prevents the Bureau or the Forest Service from identifying these
mandatory conditions in advance. See: State of Minnesota v. Block,
660 F.2d 1240 (8th Cir. 1981) cert. denied, 455 U.S. 1007 (1982);
Sabine River Authoritv v. United States DeDartment of Interior, 745
F.Supp. 388, 393 (E.D. Tex. 1988); Colorado River Water Conserv'a-
tion District v. United States, 593 F.2d 907 (10th Cir. 1977).

179. A review of the conditions set out in Exhibit 2220
demonstrates that the conditions are broad statements with which
there can be little argument. It is.true that the Applicant's
Project cannot imuair operation of the Taylor Park Reservoir to
deliver water to the UVWUA and to fully comply with the "1975
Agreement," among other operational considerations. The Court
recognizes that the federal regulations addressing the permits
which would have to be issued to authorize the Applicant's use of
the federal lands and facilities contemplate a process by which the
Applicant is given an opportunity to be. heard on methods for
avoiding "imDairment" of such operations. Clearly the Applicant is
entitled to a permit if specific ways and means can be devised So
that the potential "imuairment" can be precluded. And under normal
circumstances, it would be premature to judge whether a proposed
feature of a project would result in an impairment or not.
However, the Taylor Park Pumping Plant clearly does interfere with
the use of the Taylor Park Reservoir, and thus the Bureau has
authority to impose conditions to protect its own facility without
first requiring investigation under the NEPA process. Except with
respect to the Taylor Park Pumping Plant, however, the Court
concludes that the Applications in these cases should not be
dismissed.for failure to demonstrate permission to use the Bureau's
facilities and.lands.

B. FOREST SERVICE PERMITS:

180. A number of proposed diversion points and facilities of
the Union Park Project are located within the Gunnison National

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