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Appendix @ 6. Gunnison Tunnel's rights may call out any rights junior to it when natural flows in the river fall below the UVWUA:s direct flow rights. The biological opinions for the Dallas Creek and Dolores projects commit up to 148,000 AFA from the Aspinall Unit to help recover endangered fish populations. This water is separate from and in addition to the 300 cfs assumed in this case to be committed to the Black Canyon reserved right. Federal approval is required before relying on the use of Taylor Park Reservoir (TPR) as a forebay to serve hydroelectric pumping facilities, as Arapahoe had proposed. Both the first and second fill decrees for water stored in TPR, including the conditions for release designed to optimize fish conditions below TPR, are entitled to full recognition when determining water available for appropriation above TPR. The private instream flow rights in the Basin must be factored into the computation of water availability. A county does not have the power to condemn private instream flows to show water availability in the Basin. 7. 8. 9. D. Arapahoe's First Appeal Arapahoe appealed Judge Brown's opinion in Union Park I to the Colorado Supreme Court. In 1995, the State Supreme Court upheld the Water's Court's dis- missal of the application Arapahoe had acquired from NECO. It also upheld its opin- ion that water availability must be shown as a threshold element of an applicant's burden of proof. However, the Colorado Supreme Court reversed the Water Court on two key issues concerning water-availability modeling. Judge Brown had required that, to determine the availability of water to the Union Park Project, existing absolute decrees must be considered on the basis of the face amount of the decree and the decreed purpose(s). He had also ruled that existing major conditional rights should be assumed to be perfected in the amount set forth in the decree. The Court ruled that absolute water rights should be considered only to the extent of historical diversions, not to the maximum amount for the decreed pur- poses. It also ruled that conditional water rights should not be considered at all for determining water availability. E. The Second Trial-Union Park II Judge Brown concluded that the Colorado Supreme Court's rejection of his opinion in Union Park I was so pervasive and fundamental to the outcome of the liti- gation that a new trial was required. The second trial was preceded by a number of pre-trial orders. The most important of these, for purposes of determining water availability-still the only issue in the second trial-was an order regarding section 520(f) of CRSPA. Section 620(f) states: Gunnison Basin Water .49.