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\16 V:,~TER L-!W REV/EW Volume 4 !\tR SIt\lS: 'Veil, actually, my response to that is that the 240,OOO.acre~ ;'oo~ ;)ool-anually, we call it the marketable yield pool b~cause It w~ lH'\'(,'f really quantified at 240,OOO-lhc marketable Y1eld pool IS completely consistent with the hydropower uses. QUESTION: In what way? t-.1R. SIMS: The water ill the markct.abk yield pool could be used either I1pstrcam or downstream and not detract from the hydropower uses. QUESTION: Well, it wouldn't be going through the turbines, would it, :r:t He;", t~lu"n :1rrOSS the divide? And apparently you concede, ~nd ~he lJt~~i~~~i S~~~~~ '~onccdes, that that pool could be marketed tor mat purpose. MR SIMS: That's true, it could be. And actually ~t is bc~~g .used .n?w. On~ misconception that Arapahoe: likes to argue IS that 1t s.Just sItun.g there unused. it is being used now. \rVhatthe marketable ~eld pool ,IS reallv doing is that the marketable yield pool is wat~r that :5 currenuy being used. for hydro that they have said they ~on t need to use for hydro in the future. They can sell it off and u~e It for other purpose~. It could. be diverted over the hill, it could be dlver~cd upstrea~, and It wouldn't affect the economic feasibility of the unIt. And. that s. r~~lly the key, is the connection betvveen that and the economIC feasIblhty. Did that answer your question? QUESTION: In some ways it did and in some ways it didn~t. The direct flow power rights that were decreed and mad~ ab~olute.m 19.80, the were to be fully exercised, and that would ImI?mge m usmg l1p~rcam any part of this 240,000 acre-foot pool. How IS that resolved in regard to the operation of the project? MR. SIMS: Well, actually, on average, the direct flow .rights use a~out 550 000 acre~feet of water, on average. So those direct flow nghts could be fully exercised and there'd still be water to use. the marketable yield pool upstream. QUESTION: Ok, same question with regard to recreation, fish and wildlife, and the flood control rights. I mear:' how d~es that .l~pact whether or not the United States is actually gomg to be In a posmon to market any of that water? MR. SIMS: Well, they certainly, the recreational uses, ar~ ~ainly within , " l .lIC -~se""'''''''r '5 ""'erl fOr the reservoir, so anytlllllg mat geLS 0 II I.... 1 'VI . ....u.... ~ _ recreational purposes. Issue! ARTICLE UPDATE :37 QUESTION: I understand, but it wouldn't be there, ifil v..'as marketed to somebody who was able to use it up above. MR. SIMS: That's correct, and that's water that, just in the project planning, they said, the whole project would still work even if this water wasn't here. All the purposes would still work if this Water wasn't here. I I I . QUESTION: r guess all I'm asking you is, the state's taking a position here that appears to say, that in fact, there was a reserved pool that can be used for any of the purposes of Colorado beneficial consumptive use which would go against the Compact entitlement. I understand Arapahoe County to, in effect, be saying first of all, it's nevel- been used for that DUJ-nose. and we shouldn't be shut down from at least speaking for that ~mount of water and much less, maybe 100,000 acre- feet of the 240,000, as long as it isn't being used, and perhaps it'll never be used, given the state of Colorado's and the United States' position here, and in fact it's a blocking action to consumptive use under the Com pact. MR. SIMS: Yes, I understand that's their argument, but the United States and the State both agree that the 240,000, as you call it now, the marketable yield pool, is currently being used. That's water that is being used for these other purposes. And all that the sale or transfer of that water will do is shift it essentially from one use to another use, to the consumptive use purposes. So to say that it's just sitting there not being used, as Arapahoe has, is just wrong. It's currently being used. And even if it was just a pool sitting there, it's sitting there under a senior right. It's sitting there, as many reservoirs in the state are, storing water and making it available for water users to come in and use. The whole purpose of reclamation law is "build it and they will come." Unlike other water users in the state, governmental and municipal water users in the state are not required to have firm contracts before they actually develop water. Building a dam and putting it in and holding it is developing water. That's not what's happening here, but even if that was the case, they would be allowed to do that because they have a senior water right, and that's the key. QUESTION: Mr. Sims, am I correct that the net effect of your position is that no other entity can make use of that 1.2 million acre-feet except under contract with the United States, and then only except as to the marketable yield pool, yes? MR. SIMS: Basically, yes. And it's no different than any other water User. Once you acquire a water right, once you appropriate it, once you've developed it, once you've put it in your bucket, it's up to you to dispose of that water right. And right now, the marketable yield pool