BOARD01101

• Board Meeting Date: 7/23/2001
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

6. Results of Aspinall modeling to determine its ability to meet FWS flow recommendations in
consideration of future demands are at least a year away.

7. Completion of the plan/initiation of ESA consultation is dependent on Aspinall modeling. e

As a result ofthese concerns, the workgroup agreed th~t further work on flow-related elements of the
plan should be delayed until the following have occurred:

1. The FWS issues final flow recommendations for the Gunnison River 00 September 2001).

2, The USBR finalizes its assessment offuture depletions (-February 2002).

3. The USBR completes its model of how Aspinall operates and begins a NEP A analysis of the
impacts of operating Aspinall differently from historic/authorized operations (-August 2002),

4. There is more clarification, information and progress toward resolving the NPS Black Canyon of
the Gunnison reserved water rights claims.

In the meantime, the FWS will continue to work on those elements of the plan not directly related to
flows and depletions,

Gunnison Water Demand Projection: At the GPBO meeting discussed above, Reclamation officials
distributed a depletion assessment that it would like tl? finalize early next year. Such an assessment
would be a fundamental component in the GPBO, Any demands not analyzed in the PBO would be
subject to an individual Section 7 consultation under the ESA,

Interested parties are encouraged review and provide comments on this assessment, which would help
define an increment of future depletions to be covered by the PBO, If you have any comments on the
assessment, please respond to USBR no later thau January 11,2002,

With regard to the definition of future depletions, a qilestion arose at the meeting concerning whether e
the PBO could be restricted to in-basin depletions only, Both Brent Uilenberg (USBR) and Gerry
Roehm (USFWS) stated that their agencies would tal\:e no official position on the allocation of water
resources consistent with Colorado water law and interstate compacts, That is to say, trans-basin
diversions would not be specifically prohibited unde~ the PBO. Roehm said, however, that the PBO
would be based on certain assumptions as to the distribution of depletions (i.e" above Aspinall vs, below
Aspinall), and if the actual distribution of depletions lliffered significantly from what was modeled,
resulting in unforeseen impacts to the endangered fishes, it would be necessary to reinitiate ESA
consultation to address these impacts. We will be guided in the modeling based on the Supreme Court
decision stating that there is 240,000 acre-feet ofwa~er available for use in Colorado,

Platte River ~asin Issues

Judge Hays dismisses the application by Park COlmty Sportsmen's Ranch ("PCSR"): On June 1
Judge Hays entered an order dismissing Case No. 1-96CW14. He held that: 1) the results of the.
Applicant's groundwater model were insufficiently reliable as a basis to determine the timing, amount
and location of stream depletions; 2)The surface flow model results were insufficiently reliable as a
basis for determining either average stream flow or legal availability of water in the Tarryall Creek
basin; and 3) PCSR's proposed terms and conditions did not meet the statutory requirements that
injurious out-of-priority depletions must be quautifi~d in time, place and location, prior to the approval
of the augmentation plan. The Court also held: '

"The court concludes that recharging a cone of depletion is not 'storage'. PCSR's out-of-priority
pumping will create a cone of depletion that must be refilled, In the court's view, replacing such
depletions constitutes augmentation imposed by law, rather than storage. Storage is the introduction 0_
water into a vessel that was empty to begin with, for later removal by the storing party. By analogy,
borrowing water, like borrowing money, creates a deficit, not an asset. A payment on an installment
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