The third is in sec. 5(e) of the Act, which provides that the Secretary shall, in the "operation and maintenance of all facilities under *** [his] jurisdiction and supervision *** comply with [inter alia] *** the laws of the State of Colorado relating to the control, appropriation, use, and distribution of water therein. ***" (Italics added.)

I have discussed above the references to the Hunter Creek diversion in the feasibility report (House Document 187). (See pp. 3-5, supra.) The report contained an early version of a series of Operating Principles for the project as then contemplated.15 These Operating Principles were revised and amended and on Dec. 9, 1960, assumed the form in which they were incorporated into House Document 130 and referred to in section 3 (a) of the authorizing legislation. Sec. 9 of those Principles provides, in pertinent part:

The respective decrees which may be or have been awarded to the parties hereto as a part of the Fryingpan-Arkansas project and Basalt project shall be administered by the proper officials of the State of Colorado in accordance with the applicable laws of the State of Colorado, and with the following principles and procedures, to wit:

(1) That the demand on the waters available under such decrees shall be allocated in the following sequence :

(a) For diversion to the Arkansas Valley through the collection system and the facilities of the Fryingpan-Arkansas project in an amount not exceeding an aggregate of 120,000 acre-feet of water in any year, but not to exceed a total aggregate of 2,352,800 acre-feet in any

15 See H.D. 187, p. 36.

(c) For 3,000 acre-feet annually, to the extent that it is available in excess of (a) and (b) above, or such part thereof as may be required, to be delivered to the Twin Lakes Reservoir & Canal Co. in exchange for equivalent releases from the headwaters of the Roaring Fork River which would otherwise be diverted through such Twin Lakes Reservoir & Canal Co. collection and diversion system. (Italics added.)

Para. 11 provides, in pertinent part :

An appropriate written contract may be made whereby Twin Lakes Reservoir & Canal Co. shall refrain from diverting water whenever the natural flow of the Roaring Fork River and its tributaries shall be only sufficient to maintain a flow equal to or less than that required to maintain the recommended average flows in the Roaring Fork River immediately above its confluence with Difficult Creek in a quantity proportionate to the respective natural flow of the Roaring Fork River. The recommended average flows above mentioned are flows in quantities equal to those recommended as a minimum immediately above its confluence with Difficult Creek according to the following schedule submitted by the United States Fish and Wildlife Service and the Colorado Game and Fish Commission:

[Table omitted]

In maintaining the above averages, at no time shall the flow be reduced below 15 c.f.s. during the months of Aug. to Apr., inclusive, or below 60 c.f.s. during the months of May to July, inclusive, providing the natural flow during said period is not less than these amounts. The obligation to supply the minimum streamflow as set forth in the above table on the Roaring Fork River shall, to the

the obligation to provide 3,000 acrefeet for the Twin Lakes exchange. It is unclear how to relate that language to the feasibility report. It could be construed in various and partially inconsistent ways; for example:

(1) Since the Lime and Last Chance facilities will not, under current plans, be built, the reference in the Operating Principles to them in connection with the Twin Lakes exchange is arguably irrelevant. The failure to build the other mentioned facilities means the obligation to fulfill the requirements of the exchange remains on the South Forks of Hunter Creek.

(2) Hunter Creek water can be used only for the Twin Lakes exchange, and if Hunter Creek water is not to be used for that purpose, it should not be used at all.

(3) The reference to the other creeks on the northside arguably reflects the fact that the Twin Lakes exchange is a general project obligation, and thus the water from the South Forks of Hunter Creek can be used for general project purposes.

(4) The feasibility report embodied the Bureau's own project

plan, and contains the more explicit and repeated references to the South Fork Hunter Creek facilities and diversions. By contrast, the Operating Principles, not drafted by the Bureau, contain only a cryptic reference to the other two Creeks on the northside. Since the clearest expression is that found in the feas

ibility report, it should control to the extent of an inconsistency.

(5) Conversely, the Operating Principles are arguably a source of higher dignity because they are more recent 20 and were drafted not by the Federal Government, but by representatives of the State of Colorado and organizations representing both east and west slope Colorado interests.

The question is how to construe these ambiguities where there is no clear record. If Congress' original intent was that the South Forks of Hunter Creek be used only for the Twin Lakes exchange, there is no doubt that the Bureau's current operating plans have changed not only that purpose but the amounts contemplated to be diverted out of Hunter Creek. It is not surprising, then, that the Bureau's current operating plans are controversial. They have important implications for the environment of both the east and west slopes, and the economic viability of the project as a whole. When, as here, such fundamental values collide and various interests clash openly, it is far better for Congress, most directly expressing the will of the people, to resolve such disputes than for the constructing and operating agency to do it.

Therefore, I conclude that there is no clear authority for the Bureau

20 The Operating Principles went through several revisions after the date of the report of the Regional Director of the Bureau which formed the backbone of the feasibility report.