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<br />i\S
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<br />i,\'.lTEH L1 IV REF/F.W
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<br />Volume: 4
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<br />is th:11 {'xtra part that tlley can go out and contract to new uses, but if
<br />they never find another Ilser, it's all being u~ed now. And Judge
<br />Brown pointed that out whell he was dispHling the way that Arapahoe
<br />kHI characterized this interference, this general subordination that all
<br />CRSP projects must subordinate to any junior water user that comes in
<br />upstream. Judge Brm\ln said no, that's not right, that's an improper
<br />reading of CRSP. CRSP, and Aspinall in particular, have aided
<br />comp<lct development in the stale. He made that finding. Jim
<br />Lochhc:s.d testified :s.hOllt that. And in the '91 trial, Judge Brown
<br />point('(l out some very specific instances in which they hat! made
<br />compact development possible in Colorado. And that's the Dolores
<br />p!(~jcct, McPhee Rf>s('t','oir, and the West Divide Project. which is
<br />Ridgeway Reservoir. These are big, participating pr~jecL<j, Colorado
<br />River Storage projects putting water to beneficial consumptive use for
<br />irrig<ltion. These projecls would have a lot of their yield taken away for
<br />','later that would n<lve to be delivered for endangered species purposes
<br />on the Colorado River. A lot of the yield of those projects wouldn't be
<br />there, but for the fact that A~pinall makes releases for them, for
<br />endangered species purposes. So this shows one of the ways thatJl1dgc
<br />Bro\vn found, that in fact, there W(lS compact development being
<br />encouraged by Aspinall. And another thing-this goes to another
<br />misconception of Arapahoe's argument-they say the ,".'ater in Aspinall
<br />has never been used for compact purposes, for delivery purposes,
<br />because there's never been a compact call. Well, there's not supposed
<br />to be a compact calL Jf every.thing works the way that the Colorado
<br />River Storage Project and the 1968 Basin Project Act have been
<br />designed, there will never be a compact call. And the way this works is
<br />that they regulate tne rivers; this is the whole reason CRSP was built. I
<br />mean, when the Colorado River Compact was negotiated, the
<br />negotiators made a basic mistake, and that mistake was they assumed
<br />that there was a least 15 million acre-feet to divide in the river. There
<br />wasn't. It was more like 12 to 13 million acre-feet. Well, if that's the
<br />case, Upper Basin states who have made a promise to the Lower Basin
<br />states, that they will always deliver 75 million acre-feet over ten years,
<br />they're going to be severely constrained to develop water. They aren't
<br />going to get half, they're going to get much less than half, unless
<br />they've got storage, unless they can take the big peaks in the
<br />hydrograph that occur in the Colorado River and store them and
<br />gradually release them over ten years so it evens out the flow of the
<br />river. If that doesn't happen, then why would you ever build a project
<br />in the Upper Basin? Because in many, many years, you wouldn't be
<br />able to divert anything; and most water users don't put a bunch of
<br />money into a project; even the Federal Government wouldn't put a
<br />bunch of money into a project, if they weren't going to be able to use
<br />it. So that's the real purpose for CRSP, is to even Qut the Oows of the
<br />river. And they have done that. It's worked. The fact that there's
<br />never been a disaster, a compact call, proves it's been \....orking. And
<br />Arapahoe seeks to undermine that. And that's one or the reasons that
<br />the State Engineer is in this case. The State Engineer is neither
<br />
<br />i
<br />
<br />Issue 1
<br />
<br />ARTICLE ('/PDA TE
<br />
<br />lJ9
<br />
<br />opposing nor supporting the pr~jcct. But the State Engineer is very
<br />concerned abou.l these a:gumcnts that could ha\'e a drastic impact on
<br />the law of the nver. TIllS law of the river has been developing since
<br />even, befo~e the compact. It's been developing [or 75 to 80 years, and
<br />they re .lIJ:mg. to turn. it on its head. Just so they can get water available
<br />fo: their jU11l0r pr?je~t. Perhaps I should mention a couple other
<br />things, because agam, If 620f doesn't fly, and I think we've shown that
<br />it doe~n 't, the h_ouse manager's report that's in the legislative history-
<br />the 1mal con1crence report where the Senate and the House
<br />negotiators came together to work out the differences between their
<br />two ?ills, and t~ey told us why 620f was put in there-what they told us
<br />was It was put m there so everyone would live up to the compact. So
<br />these c?mprom~ses that were made over the years over hyd'ropower
<br />woul~n L be disrupted, Lhere was lIO intention to put stricter
<br />~eqUlrements on. So if you just look at 620f, we think it is plain on its
<br />tace.
<br />
<br />QUESTION; Bu.t.l~nder your interpretation, it would only apply to the
<br />hy?ropower facilItIes of Lake Powell, right? It would pre\'ent them
<br />belllg used at the Glen Canyon Dam to call out Colorado water, isn't
<br />that the interstate issue?
<br />
<br />MR. SIMS: Yes, absolutely. We agree with that. 620fwas intended just
<br />to :nake. the hyd.ro compromis.e stick; it wasn't going to change it.
<br />Cahforl11~ was trymg to change It when they were adopting the statute
<br />and they Just wouldn't let them get away with it.
<br />
<br />q.UE,STION: But you're saying the Colorado sponsors of the project
<br />dldn t have any concern about the hydropower rights being exercised
<br />in Colorado?
<br />
<br />MR, SIMS: Well, absolutely they did, Colorado did not want any
<br />I~terstate c~lls. I mean, that was the Upper Basin issue, really. These
<br />big :eservOlrs should not be extending calls beyond state lines. And
<br />that s when Arapahoe argues that the state's position is going to
<br />prevent any development upstream. They forget that little part of the
<br />argument, which is we have never agreed that Glen Canyon can call
<br />above a s~te line or that Flaming Gorge can call above a state line, or
<br />that NavajO Can call above a state line. Actually the only reservoir in
<br />the system that's purely intrastate is Aspinall. Because remember,
<br />Glen Canyon is built right on the Arizona-Utah border. I mean, the
<br />?am that would be calling would have almost nothing in Arizona that
<br />It could call out. Same with Flaming Gorge, where the dam is built on
<br />the Utah-Wyoming border. There's almost no intrastate area that it
<br />could call out. So that's why we look at 620f as an interstate matter.
<br />Everything in the compact is interstate or interbasin.
<br />
<br />QUESTION: What about the 60,000 subordination depletion
<br />
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