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<br />QUFST10N' Let me :lsk Y()ll "bOlll ibis :iOO,OOO, is lh:lt waIn that is
<br />,dso released from the Aspinall Unit after hasing been stored for the
<br />mllltiple purposes of the pr~jcct?
<br />
<br />cOlllplncd "ppmpl itlliolls within a reasonable tlllle. It held that it's
<br />implicit in 111(" cOllslillltion that then" shelJI he maximwll utilization of
<br />water in the state of Colorado. \Vater is a vcry scarce and valuable
<br />resonrce ill this state and this court. ordered the water Court to
<br />consider applications for conditional water rights in a manner that
<br />would encourage the development of water resources in the state. The
<br />court set forth some other standards. It set forth the standards of what
<br />river ronditions should be considered when a conditional water rights
<br />aoolication is before the court. It held that onlv the conditions on th....
<br />r;v~r at the time the applications were filed s~;ould be consjder~-d -i~
<br />determining water availability, because those conditions give the best
<br />picture of what water is available for appropriation and what water is
<br />being put to beneficial use. This court also held that absolute water
<br />decrees should only be considered based on the historic use rather
<br />than their full decreed amounts. This court held that conditional
<br />water riJ:rhts should not be considered in determinin2: water availahilitv
<br />~ ~ --~
<br />jf diversions are not being made under those rights. And it generally
<br />made it very clear that the inquiry should be limited in determining
<br />water availability to issue a conditional '.vater right. The case was
<br />remanded and the trial court held a second trial in October of 1997.
<br />In that trial, it actually found less water available for appropriation
<br />than it did in the initial trial. It found only approximately 15,000 acre-
<br />feet avaiiabie for appropriation. And the issue before this court today
<br />is whether the water court did comply with the mandates and
<br />standards set forth in the first appeal. It's our position that the water
<br />court did not, and it does not apply the doctrine of maximum
<br />beneficial use in a way that would encourage the development of water
<br />resources in the state. Now, the water court relied primarily on two
<br />federal facilities to find that there was virtually no water available for
<br />appropriation. They relied on the Aspinall Unit which I referred to
<br />earlier, and the Taylor Park Reservoir. Now, the Aspinall Unit is the
<br />other issue I'd like to discuss briefly this morning and I'd like to set
<br />out for the court the posture of the issues surrounding the Aspinall
<br />Unit for the remand trial as they relate to the mandates from this court
<br />and as they relate to the way that the unit was considered for
<br />determining water availability. The Aspinall Unit was at issue in the
<br />initial trial and the water court held that the 1.2 million acre-feet that
<br />are flowing through the Aspinall on an average annual basis, that
<br />Justice Hobbs inquired about, is unavailable for upstream
<br />appropriation. Those issues were appealed to this court and this court
<br />elected not to specifically address the Aspinall Unit issues. However,
<br />it's our position that it certainly addressed those issues by setting forth
<br />the mandates that the water court was to consider in determining
<br />water availability on remand.
<br />
<br />l'lli()1l 1',ll'K RC:-('IYlllr Ivoldd di\TrI, and lhosc oulllows occur after usc
<br />or :'!1I <"xis!ing scnior water rig:ht~. A~ the (;ullnisolJ River contin\les
<br />dOwllstlcam, it (olllill\\('S to gnn\' exponclltially. At the Aspinall Ullit.
<br />which J Ic(nTcd to earlicr, there arc ~\pprOxilllately 1.2 million acre.
<br />reC! which now through thaI faci!il)' Oil an average anllual hasis.
<br />
<br />:-..fR. nus: The :~)OO,OOO acre-feet is above the Aspinall Unit. The 1.2
<br />million acre-feet is the a\'crage amount 1lut's r('!rascd through thc
<br />,\spinall Unit on all average annual basis.
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<br />QUESTION: Ok, I'm stil11rying to figure Ollt what YOII're saying: abOUT
<br />tbe ::IOO,OOU acre-feet, IS it stored or is it not stored ill the Aspinall
<br />Unit?
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<br />MR. ZILlS: :)00,000 is i1ov..'ing Ollt of fhe Upper Gunnison River Basin
<br />afrcr us(' hy all the irrigation rights upstream. In othn words, at the
<br />.conflucnce or the East and Taylor Rivers that form the GlInnison
<br />Ri\'cr, therc arc :'00,000 acre.feet which no\'': out of that LIpper
<br />Gunnison Rasin and continue dowllstream.
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<br />QUESTION: PreslllJ)ahly lhey'rc going through lhc hydroelectric
<br />facilities and they're passed through the Aspinall Unit.
<br />
<br />MR. ZILIS: Correct. As a mat.ter of fact, as the Gunnison River
<br />continues to the Aspinall Unit it picks up other tributaries and it's
<br />passing through an average of 1.2 million acre-feet per year.
<br />
<br />QUESTION: Ok, thank yon,
<br />
<br />~...[R. ZILIS: The Gunnison River continues to grow as it continues
<br />downstream. By the time it reaches its confluence with the Colorado
<br />River near the city of Grand Junction, almost 2 million acre-feet flow
<br />out of the Gunnison Basin annually. This is after use by all existing
<br />\....ater rights. Now, this case has been in litigation for over ten years [or
<br />a public entity to show that a portion of that water is available for
<br />appropriation. The first trial was held in 1991 and the water court
<br />found that only 20,000 acre-feet are available for appropriation out of
<br />this vast amount of water that's fIolNing out of the Gunnison Basin.
<br />That case was appealed to this court and this court reversed and
<br />remanded the trial COllrt on numerous grounds and set forth
<br />numClOUS standards for the waler comt to consider in any remand
<br />proceedings. It held that essentially the standards that were applied in
<br />the first trial in that case foreclosed recognition of applications for
<br />conditional waIn rigl1ls decrees that had every prospect of resulting ill
<br />
<br />QUESTION: Let me ask you about that because it looked in the
<br />various orders that the trial court issued regarding the modeling and
<br />the legal assumptions to be made on water availability, that he did look
<br />at the absolute decrees for recrcation, fish, hydropower, that had been
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