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<br />appropriation, \ISC and control of water, the COllSlll11pti\'C use o[which
<br />i.<; apportioned :uld available to SIleh slate by this compact.' ~ 37.G2-
<br />101, art. X\'(h), 10 c.R.S. (2000) (also referring to storage and use uf
<br />water [or generation of electrical energy). Thus, the hydropower
<br />components of both compacL'i defer to state law.
<br />Colorado law provides for priority administration of decreed
<br />Iwdropowef appropriative rights within the state. Congress dearly
<br />expressed its intent that the hydrop<n.ver features of CRSPA neither
<br />operate to prevent the Upper Basin States from meeting their
<br />Compact requirements at Lee Ferry, nor to change the Upp_er B~sin
<br />state allocation of waters. On the other hand, Congress deterred to
<br />state law for deciding and administering appropriative rights ,vithin
<br />the bOlll1darics of each state. Congress did not intend to create a
<br />different law for the Aspinall Unit.
<br />\Ve conclude that the ,..'ater court did not err in giving effect to the
<br />hydropower water rights of the Aspinall Unit for purposps of
<br />d~termining availability of waler for junior condition3.! rights under
<br />the' can and will' test."
<br />Iii. at 338.
<br />
<br />Tenth Circuit in its opinion, as well as tht' ('Xist<:"llCC 01 tbe absoiutl'
<br />,....ater righL'i for recreation and fish and ,\rildlife support the \....ater
<br />court's legal conclusions. Recreation and fish and wildlife are
<br />recognized beneficial uses in Colorado. Accordingly. we hold that
<br />both because Congress specifically authorized a recreational use and
<br />because the recreational use is but one of the purposes of the
<br />reservoirs, jicarilla does not apply."
<br />Id. at 339-.10.
<br />
<br />"'Ale affirm the water court in its conclusions that the 60,000 acre~
<br />feet to which BUREC agreed to subordinate their uses are availabie
<br />only to in-basin users; and the 240,000 acre-foot marketable pool is
<br />available for use in-basin or transbasin, hut only by contract with
<br />BUREC,"
<br />ld. at 340.
<br />
<br />"Colorado law also identifies flood control as a beneficial llse. \.lYe
<br />. ;'ejcCL AP-P<llHw's argument that operation of L~e A<;pinall Unit for
<br />f100d control purposes results in a waste of water and that Arapahoe
<br />should be able to appropriate water that would otherwise be evacuated
<br />from the A<;pinall Unit in the f100d control operation. CRSPA
<br />provides for flood control as one of the purposes of its authorized
<br />reservoirs. See 43 U.S.c. S 620. The United States holds state
<br />appropriative rights and decrees for 'flood control' purposes and may
<br />exercise them along with all other decreed uses of the project."
<br />Iii. at 338-39.
<br />
<br />"''v'v'e find the in-basin 60,000 acre-foot subordination by the United
<br />States valid. The construction of the Aspinall Unit greatly benefited
<br />the Gunnison River Ra<;in, but not without adverse effects. The dams
<br />inundated many miles of prime trout fishing and flooded several
<br />properties. To offset these losses, the United States agreed to set a<;ide
<br />60,000 acre-feet of water for future project<; to benefit the Upper
<br />Gunnison River Basin.
<br />
<br />We agree with the water court that Arapahoe is not entitled to the
<br />benefit of the subordination agreement because of it<; proposed
<br />transbasin uses, and therefore we find it unnecessary to consider if
<br />BUREC has consented to increase the subordination beyond 60,000
<br />acre-feet.
<br />
<br />"Arapahoe also addresses the United States' impoundment and
<br />release of water from the Aspinall Unit for fish and wildlife and
<br />recreational uses. Arapahoe contends that Congress intended those
<br />uses, like power generation, as incidental uses that would be
<br />subordinate to junior upstream water rights.
<br />
<br />. . Congress established the Curecanti National Recreation Area at
<br />the Aspinall Unit. See 16 U,S,C, S 410flf-9 (Supp, 1999), Congress
<br />invested nearly $30,000,000 in the site and it draws over a million
<br />visitors annually. To accommodate the great number of boaters, Blue
<br />Mesa must be kept at an adequate level to maximize the navigable
<br />surface of the lake.
<br />The jicarilla court rejected the construction of resel\1oirs solely for
<br />rprrf'ational Durnoses. Here, of course, thc reservoirs are not solely
<br />f~~ r~creatior;. More persuasively, the 1968 Act, not mClltioned by the
<br />
<br />. .. [T]he storage and release of water from the Aspinall Unit for
<br />Compact delivery purposes aids Colorado in meeting its Compact
<br />obligations, thereby benefiting the state's water users. Second, the
<br />commiunent of the United States to make the marketable pool
<br />available for uses within Colorado will serve the CRSPA purpose of
<br />aiding the state's use of its Compact apportionment. Third, by
<br />enforcing the Aspinall absolute decrees as we would any other absolute
<br />decree, we clarify that the water rights of the United States carry the
<br />same benefits and responsibilities as all other decreed water rights."
<br />ld. at 341-42 (footnote omitted).
<br />
<br />"The water court made a factual finding that Aspinall's marketable
<br />pool consisted of 240,000 acre-feet of water available [or consumptive
<br />use. BUREC currently uses this water for multiple decreed purposes,
<br />
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