PUB00004

• Year: 2003
• Title: Gunnison Basin Water: No Panacea for the Front Range
• CWCB Section: Administration
• Author: Land and Water Fund
• Description: Gunnison Basin Water: No Panacea for the Front Range
• Publications - Doc Type: Other

Appendix

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Judge Brown also noted that the Aspinall Unit provided a marketable yield of
240,000 AFA that could be purchased by in- or out-of-basin diverters. However, in a
post-trial order dated June 18, 1998, he amended his conclusion on marketable yield
to be dicta only. '"

F. Arapahoe's Second Appeal

Arapahoe appealed Judge Brown's opinion in Union Park II to the Colorado
Supreme Court. Arapahoe first challenged the opinion on the ground that the
Colorado Supreme Court's 1995 opinion should have caused the Water Court to have
found more water available than it did in 1991, not less. The Colorado Supreme
Court answered this by saying that it did not mandate any particular outcome, and
that Judge Brown's finding in Union Park II on water availability was supported by
the record. Arapahoe contended that CRSPA, because one of its purposes is to assist
Upper Basin states to develop their Colorado River compact apportionments, should
allow those who want to divert Gunnison Basin water to do so without regard to
Aspinall Unit water rights. The Court denied this claim by holding that:

1. Aspinall's stored water provides Colorado with the ability to satisfy
Compact deliveries to downstream states without eroding other water
rights decreed for beneficial use in the state,

2. This benefit must be paid for, and is, through the generation for sale of
hydroelectric energy generated at Aspinall. .

3. The subordination of hydroelectric power uses to other uses in section
620(f) of CRSPA applies only to interstate compact entitlements, as
Judge Brown had held, since Congress did not intend to pre-empt state
law, which provides the basis, in Aspinall's state decrees; for
hydroelectric purposes.

4. Aspinall's water rights for flood control are valid and do not result in a
waste of water.

5. Fish, wildlife, and recreational uses of water by Aspinall are valid.

6. The 60,000 AFA subordination is available to in-basin uses only.

These findings clarified that Arapahoe cannot use water that the Aspinall Unit uses
under its state decrees.

Arapahoe next contended that the accounting conditions contained in the
opinion in Case No. 86-CW-203 do not reflect historic conditions and, thus, should
not apply to the determination of water available from the TPR. The Colorado
Supreme Court answered this contention by saying that this issue had been resolved
against Arapahoe in another case, In re Application for Water Rights of the UDDer
Gunnison River Water Conservancy District.

The Court also stated that Arapahoe had shown little evidence to prove that
the U.S. and the UVWUA would grant Arapahoe the right to use TPR as it had pro-
posed in its application and, thus, Arapahoe had failed to meet its burden under the

Gunnison Basin Water

. 51 .