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128 ii'.ll FR I.,j Ir R.FTii:n' "';;lume4 !s:oue! ~RT!CU- r;pD.1TE 129 pteviously granted in I~JSO, I uclic\T, the absolute decrees, and he also factored ill, it sccTT)('d to me, this 210,000 acre-foot contract pool that apparently is stored in the A<;pinall Unit but used for these other various purposes, and also the Hood control purpose. So why isn't the posture of this case that all the storage in the Aspinall Unit, in fact, has been exercised ill dlC' past under these slale decrees under section 8 of the Reclamation Act in the River District's assignment to the United States of those rights? QUESTION: So the answer is yes. ivfR. ZILJS: That's an excellent question Justice Hobbs. The water court actually held that n011C of the massive amounts of water which do flow through the Aspinall Unit are available [or appropriation, and it held that in considering water availability one cannot look at what purposes those water rights are used for. So in essence, what the Water COul i helli, was that any water that nows through the Aspina!! Unit, from the minute it was buHt, is IIOW appropriated under state law Jnd fhat there's no \vater available above that amount, in other words, the full 1.2 million acre-feet which flow through the Aspinall Unit. It's our position that that's directly contrary to the mandates of this court .and dircctJy contrar; to the mandates and the Congressional directives in the Colorado River Storage Project Act, which authori7.f::ri the construction of that unit. As you are aware from the extensive briefing on this issue, "CRSPA," or the Colorado River Storage Project Act, was actually passed by Congress to allow the Upper Basin states to use their compact apportionments. If this analysis that the water court applied to the Aspinall Unit, is applied to the other Colorado River Storage Project units, it would turn CRSPA on its head and would actually prevent any further appropriations upstream of those units once those units were on line. So it was our position in court that one has to look at the individual uses of the water at the Aspinall Unit to determine whether those uses should preclude upstream appropriation. It's very clear from CRSPA that the very intent of this was to provide carry over storage so that water could be stored in wet years and then only released to the downriver states, the Lower Basin states, during prolonged dry periods, so that the Upper Ba<;in states would be allowed to continue to divert and to develop their apportionments under the compaCl'i. MR. ZILIS: The ans\\'er is not yes. I think that the Colorado River Storage Project Act Wa'i put into place so that the carry over storage could be prOvided. Under current river conditions, I suppose one could apply for very, vcr;.' large appropriations upstream of that, but it needs to be considered in a way that tbe carry over storage could be available to the Lower Basin states. Under present conditions though it's not being used for consumptive uses to any extenl. As Justic~ Hobl?s pointed out, it has a pool that's been aside for consumptive uses III tbe amount of 240,000 acre-feet and it's only been used to Ule extent or 78 acre~reet. The rnain function of the .:..spinall Unillo date has been the generation of power and flood control. QUESTION: So the ansv.rer to the question 'would be that the only use for which the domestic and municipal uses could be called out would be to supply water at Lee's Ferry in accordance with the compact. Is that right? Is that what you're saying? MR. ZILIS: No, I think the other primary purposes are consumptive uses. QUESTION: So are the 200,000 and some odd acre-feet that are reserved for consumptive uses and/or the historical or actual consumptive use of 78 acre-feet at present? MR. ZILIS: It would be the 78 acre-feet at present. I think that's very clear under the mandates of this court when it held that water rights need to be viewed in light of their historic use rather than their decreed amounts. ' QUESTIO~: Let me ask you this. Suppose the project proceeds and the water IS taken over to the east slope and then the United States exercises its contract rights which would be clearly senior under Colorado priorities, right? MR, ZILIS: Correct. QUESTION: Mr. ZiEs, if we were to take your position, would it mean that the full 1.2 million acre-feet would be available for domestic and municipal appropriation? QUESTION: Now, wouldn't that then totally interfere with the operation of this project in the future, Arapahoe County's project? MR. ZILIS: Under current river conditions, we take the position that the Aspinall Unit could not place a call on the river. That is because it has not yet been used for these compact purposes. To date, it's never been needed to release water to the downriver states in the dryer periods. MR. ZILIS: Not necessarily, and again we're looking at future conditions. But, if Arapahoe County's project came on line, the projected diversions would average about 120,000 acre-feet per year. That means that there would still be an excess of 1. I million acre-feet available to the Aspinall Unit for all o[its various functions.