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<br />o <br /> <br />Appendix ... <br /> <br /> <br />Subject to the provisions of the Colorado River Compact, neither the <br />impounding nor the use of water for the generation of power and ener- <br />gy at the plants of the Colorado River Storage Project shall preclude or <br />impair the appropriation of water for domestic or agricultural purposes <br />pursuant to applicable state law.''' <br /> <br />This section requires the Bureau to subordinate a call for water for hydroelec- <br />tric purposes at the Aspinall Unit to domestic or agricultural purposes, defined in the <br />Colorado River Compact, to which reference is made in CRSPA, to include municipal <br />and industrial purposes, stated purposes of the Union Park Project. Judge Brown <br />ruled in Union Park II that the subordination contemplated in section 620(f) has <br />interstate application only. This means that use of water to generate hydroelectric <br />power at the Aspinall Unit is not subordinate to Union Park or for that matter, any <br />domestic or agricultural use within Colorado. This was a very significant holding for <br />this case; it means that Aspinall may call out any junior water rights holders in <br />Colorado to meet its large hydroelectric rights. <br /> <br />The most significant issue in the second trial was whether the 60,000 AFA <br />subordination is available for trans-basin diversion. Arapahoe had conceded at trial <br />that, if it could not rely on the subordination, there was insufficient water available <br />for Union Park, largely because of the magnitude of the Aspinall Unit's water rights. <br />The lion's sharo of the testimony, as well as of Judge Brown's opinion in the second <br />Union Park trial, address this issue. <br /> <br />Judge Brown held that the subordination is limited to 60,000 AFA, 40,000 AFA <br />of which may be depleted above Blue Mesa, and that the subordination is available to <br />junior users but only for in-basin development. He confirmed his earlier ruling that a <br />contract was essential to use the subordination. And he ruled that restricting the <br />subordination's use to in-basin development did not constitute an unlawful selective <br />subordination. <br /> <br />As in Union Park I, the Judge was confronted with varying sets of estimates of <br />how much water was available. On the basis of legal rulings from Union Park I case <br />that had not been overturned by the Colorado Supreme Court and in light of his reso- <br />lution of the issues described here, Judge Brown found that there was no more than <br />15,700 AFA available to the Union Park Project. Given the fact that Arapahoe had <br />conceded in Union Park I that 20,000 AFA was insufficient to assert feasibility of the <br />project, the Judge dismissed Arapahoe's application with prejudice, moaning that <br />Arapahoe may not re-apply for water rights for this project. <br /> <br />The result was ironic. Mter the Colorado Supreme Court ordered Judge <br />Brown to reconsider the effect of absolute and conditional water, many expected <br />more water to be available. But just the opposite happened. After looking closely at <br />all the evidence (with a new magnifying glass supplied by the Supreme Court), Judge <br />Brown determined that water rights junior to the Aspinall Unit for out-of-basin diver- <br />sion are left with virtually no water. <br /> <br />. 50 . <br /> <br />The land and Water Fund of the Rockies <br />