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! "~I) I\'AT:'="R Un' REI.,!:\\, Vulumc .l L,suci ARTiClE LTDAiT 131 QUESTION: 1'.1)' second question is, if the watc! is taken through the divide, is it llH.:ll not avaib.blc to mcct this compact call circumstance in a prolonged drought cycle, the back up plotection for Colorado's bcneficial use? being used? QUESTION: Here's my concern. My concern is that based on this project history and the way it was put together and the debates and so on, there is 240,000 acre-feet that can be used through that project, apparently, any place in Colorado, east slope or west slope, upon a contract. And that in fact, the way you've postured the case, does not, I would ask you to answer, answer the question that in fact, a part of the bargain made for the building of this unit was that there would be water available for consumptive use, and it is sitting there, in fact, under the water righl.'i for the Aspinall Unit, and why isn't this application then a second and independent dip at the same water? !\lR. ZILIS: It's being used, but as I think is briefed cxtcnsivclv it' being used for purposes that are incident.al to the primary pllrpo~~s o~ the whole act. If the United States were to take this position at all of the other Colorado River Storage Project units, it would have Control of the entjre Upper Basin and could preclude any diversions by any water uses in Upper Basin states unless they have a confract '.v:ilh th~ Unileu SlaLt:S. Now, I think there's a big difference bCt',vcen appropriations under state law upstream of the Aspinall Unit and Uses of water directly from the Aspinall Unit. I think if the applicants Were attempting to take advanLage of the pool after it's stored in the Aspinail Unit, that they would very weli have to contract \..,.;th the United States and would have to purchase that water. However, it's our position that the Colorado River Storage Projcct Act cannot preclude appropriations under the Upper Basin state's apportionments upstream so that it CJ.fl sell water from the actual structures themselves. This position has never been taken at the other units. In fact, it was not even the position taken on this unit at the time this application was brought. It has been a new position that has been taken by the United States, in this case, for thc first time ever and, it was adopted by the water courL And I think t.hat if thaI position is recognized, then it will mean that Colorado has given away the Upper Gunnison Basin and control of that Gunnison Basin to the United States, which I don't think was ever the intent of CRSPA or the state of Colorado in authorizing CRSPA and approving of it. If there are no further questions, I'd like to have John Henderson address this court regarding the issues surrounding Taylor Park Reservoir. Thank you very much. ~.lR. ZILlS: You know, \ve do not havc to reach that issue in this case because it's never been used for that purpose. In the initial trial, the division emrineer actually testified that the United States would not be able to pr~clude upstream diversions based on compact demands. However, again, baseri on the conditions on the river in this case, I think what we're looking at is water availabilit.y based on current circumst<lnces or the circumstances when lhe applications were Wed in this case. At that time, it's never been needed for compact purposes. The t\'lo primary functions though, to reiterate, arc compact purposes and consumptive" uses. And I think for purposes of this case, you coul(l conclude that they could call [or those water rights. But the oniy issue before this court in this case is whether the applicant should be denied the right to appropriate 100,000 acre-feet. under the conditions on the river at the time the applications \'iere filed. The conditions at that time were passing 1.2 million acre-feet through the AspinaH Unit annually, and that would cut that amount to 1.1 million acre-feet, which arc passing lhrough the Aspinall Unit and unavailable for appropriation in this state. It's generally our position that if the mandates of this court were followed closely, and if the purposes of CRSPA and the Congressional directives are followed that there should be ample amount of water available for appropriation upstream of the Aspinall Unit. QUESTION: But it's sitting in storage for r~creation, the flood control, the fish and wildlife, the National Recreation Area use, is it not? Isn't it MR, HENDERSON: May it please the court' My name is John Henderson. I would like to follow up on one question that was asked to Mr. Zilis about the compact water, and that is Justice Hobbs, if the United States has been traditionally releasing four or five hundred tho.u~an(~ acre-feet from Blue Mesa for flood control in the spring in anuclpauon of runoff, and Arapahoe County begins to take 100,000 acre-feet of that upstream at each year on average, I'm assuming that the United States will simply adjust its operations so that it releases less water in storage for compact purposes for flood control in the spring. That fits in with the policy of ma.ximization of beneficial use. If I might say, with all the respect to Sherlock Holmes, sometimes it's the dog that doesn't bark that tells us the most about a case. In the 300 pages of the opposer briefs here, no one mentioned the actual historical use of the first fill of Taylor Park Reservoir for irrigation. It's not because that number is a secret, it's in the decree at section 33a and at footnotes five and six. The amount, using the larger figure used at trial by any of the parties, is 21,831 acre-feet of historic first fill. The second fill was quantified in the trial court, there in 1990, in what we know as the Upper Gunnison case. That case was affirmed here in MR. ZILIS: I don't believe it is a second and independent dip for several reasons. First, the 240,000 acre-feet that's been set aside for future contracts has not been yet used, and I think under the mandates of this court from the first appeal, that one needs to examine the historic use for that decreed purpose which has only been 78 acre-feet. -._-,.-....- ~-......-,~-~-:-..-~<:>'~ ...-~'..-.-......~~_..--' .-~"- -,.,--