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Mr. Mark Wondzen March 4, 1999 Page 2 of6 .~ , throughout the Gunnison river basin. It will be impossible to assess the NPS proposal in the necessary context until we know what operating regime the Service will propose for the Aspinall Units and critical habitat downstream of the Monument. . I expect that these comments are simply the beginning of a process that may take some time to complete. The Board will certainly have additional comments and responses if and when there is a joint federal agency proposal, or when the NPS proposal and the details surrounding it have been made much more specific. With that understanding, the Board submits the following preliminary comments: Application of the reserved rights doctrine. The NPS proposal is a settlement of disputed claims. Although the previous water court decree provisionally recognized reserved water rights, the need for and quantity of those rights must be proven. Current U.S. and Colorado Supreme Court precedents require that the quantity of a reserved right must be the minimum amount necessary to prevent a primary purpose of the reservation from being entirely defeated. The NPS' s settlement proposal should oe a reasonable compromise, but must be grounded upon and consistent with these pnnciples. A claim for "all the remaining unappropriated flows" hardly seems reasonable or justified. . Accordingly, the Board has questions about quantifying the Monument's reserved right as "all remaining unappropriated flows," particularly where the Monument does not sit in a headwaters location, but instead is downstream of numerous water rights, including a major federal project which controls the flow of the river. This claim creates many administrative questions and possible problems. It certainly raises questions about whether this "quantification" adequately satisfies the standard for reserved rights set out in U.S. v. Denver and U.S. v. Jesse. It also may not comply with the directions for quantification set forth in the previous water court decree. At present, the proof supporting the NPS proposal seems questionable. Even a settlement may require at least a prima facie showing that the large amount claimed represents the minimum amount necessary to prevent the entire defeat of Monument purposes. First, the purposes for which the NPS has advanced this proposal, the purposes advanced and recognized in the U.S. v. Denver proceeding, and the authorized purposes for which the monument was created are not necessarily the same. These purposes need to be clearly articulated and the flows required for each purpose described. Second, there is not evidence that there will be or have been significant effects from diminished flows. Studies seem to have been confined to a few locations where effects are most likely to be found, rather than looking at the Monument as a whole. Finally, the proposal appears .