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',',:i!:l:t.ll',f(j;i.'f;i\ V'.'I~lllK" .l b~ue . At:ncu: ['j'!JAU: l2S ;11Id has conlLlued wllh otllers for 0111y :t ~lll,lll fraction of the lolal ;l\'ailahle marketahl(' pool. The United Statcs conceded on oral ~lrgtllllcnt thaI both the Eastern and V'/csterll Slopes could llse this pool beneficially through reopl.~ration of the rescrvoi.r.: .Section 620c of CRSPA authorizes BUREC to ell tel' into both IrngatlOn and municipal contracts wilh water users. See 13 USe. S 620c (1994). The beneficial uses listed in the Aspinall Unit's final decree. Case No. SOC\V15fi, include domestic and Illlmicipaluses. Therefore, although Ar:1.n:lho(' Illav not obtain a seoarate appropriation of the waters alre':1dy dCCH~~d to the Aspinall Unit, Ar;l;ah~e may seek a rontract with BUREC to use the water for municipal p\lrposes." !il.:1l3.t2. leady for the appcllallt. ORAL ARGUMENT MR. nus: Coot! morning. May it please the COllrl? ~Iy name is Paul Zilis and I'm joined at counsellable this morning byJohn Henderson. \Ve're both with thc law firm ofVrancsh and Raisch and WI:' represcnt the appellants in this case the Board of County Commissioners of the County of Arapahoe and the Union Park Water Authority, During my argumem this morning, I plan to address this court's ffi<lndates [rom the: first <looe:al in Ihis ca.<;e and their imoortance in orot{'('Iint:T th.. Constitllti~~al right to appropriate water i'n the state o'f Colorado~..'i would also like to address the manner in which the U.S. facilities at thc Aspinall Unit on the Gunnison River should be considered in determining watcr availability. This is also ;:m issue of statewide concern because the Gunnison River provides a large percentage of the ou\i1ows of water from the state of Colorado in the Colorado River Basin and the rulinrrs in this case may very well determine whelhpr water will be appr~priable under at'lr apportionments under the Colorado River compacts. As you know, this case concerns the Union Park Reservoir Project. It's a large project proposed for development in the Upper Gunnison Basin and the primary issue before this court today is whether water is available for the conditional water rights for that project. The reason that is the primary issue in this appeal is that the Union Park Reservoir Projen proposes to diven water only under its own junior priorities. It will not require the dry up of any agricultural !ands and it .....,'il! not require the acquisition of any senior agricultural water rights in making water available for multiple purposes. Bccause of this design it would divert water under junior priorities which would mean that it would probably divert, and the engineering analyses indicate that would divert, the vast majority of iL'i water only during the period of spring runoff, usually from the months of April through early july. The reason that the project is designed in this fashion is that there is a vast amount of water physically available in the Gunnison Basin. We've prepared an exhibit here today (eight and a half by eleven copies were passed out to the justices before argument) to show the amount of water that flows out of the Gunnison Basin under current conditions after use by all existing absolute water rights, BOARD OF COU,VTY COAL\fISSlONF.R,) V. CRFS7~'\L CREEK [fUMF.O\VNERS' ASs ',\;,1 Board of Count)' Commissioners 'U. CI)'stal Creek Homeowners' Ass'n was a complex decision involving several different facet.s of water law. The .case ha.s been in progress for almost ten years. In 1995, the Colorado Snpn::n1c Court held that the trial court CITed in ille first trial by considering conditional decrees senior to the Aspinall Unit decree. The court also held that only historically exercised decrees should be coullted when determining the <imOHnt of water available to meet the "can and will" test. The supreme court remanded the case to the trial court to determine the historic operation of the Aspinall Unit. The trial court again found that insufficient water for the applicants to meet the "can and wilr' test existed. The applicants appealed that decision on several grounds. A transcription of the oral argument to the Colorado Supreme Court from the second appeal follows. JUSTICES IN ATTENDANCE AT ORAL ARGUMENT, MARCH I, 2000: Chief justice Mary J. Mullarkey Justice Gregory Kellam Scou4 Justice Rebecca Love Kourlis justice Gregory J. Hobbs,jr. justice Alex]. Martinez justice Michael L. Bender justice Nancy E. Rice QUESTION: Before you comment on that, is there any objection to the use of this exhibit? MR, SIMS: No, CHIEF JUSTICE MULLARKEY: Parties are al counsellable and we're CHIEF JUSTICE MULLARKEY: Co ahead, :~. 14 P.3d 325 (Colo. 2000). ,1. By the time the court decided lhis (a~c. jll,~ljle Glegol)' K. Scott had retired frornlhc (ourt andj\lSlicc l"athan B. Coats partiClpatcd in thc decision. MR. ZILIS~ Thank you. As you can see from the exhibit, there are currently annual average outflows of approximately 500,000 acre-feet out of [he East and Taylor Rivers, which are the rivers from which the -:'~ __" ~~;-~;...,<("-',~~~~.~.~~". ;....:""."'::::~;~-;"'. :-:. -~';"-1 ~:;:':::::::::::;:";'l:"';~~:::';.. -....,:~-.."'.~ ~