BOARD00043 ‎(2)‎

• Board Meeting Date: 9/20/2006
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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Brimmer in federal court took place June 29th, This argument addressed the judicial review
of the U.S. 's actions on the Black Canyon reserved right quantification and the agreements
reached with the CWCB, Judge Brimmer has not yet ruled,

WATER RIGHTS UNIT MATTERS

1. Application ofCitv of Central (Case No. 92CW168).

On November 28, 2005, in Colorado Water Conservation Board v, City of Central, 125 P3d
424, 441 (Cola. 2005) the Colorado Supreme Court unanimously holding that, as a matter of law,
the City of Central ("Central") must include in a proposed augmentation plan terms and
conditions sufficient to protect the CWCB's 1987 instream flow right The Supreme Court
remanded the matter to the Water Court to consider what terms and conditions are necessary to
protect the CWCB's right In so doing, the Supreme Court also suggested changes to Central's
decree that would provide such protection,

On January 13,2006, the Water Court entered an Order directing Central to file a proposed
decree consistent with the Supreme Court's opinion, On February 2,2006, Central filed a
Response to the Water Court's Order Central asserting that notwithstanding the Supreme Court's
legal ruling, as a matter offact, no terms and conditions are necessary to protect the CWCB's
instream flow right On February 17, 2006, the CWeB submitted its response, The CWCB
argued that Central was simply attempting to raise as "factual" arguments the same legal
arguments that the Supreme Court had already rejected, The CWCB argued that, based upon the
Supreme Court's unanimous decision and the clear evidence produced at trial, Central's decree
must include terms and conditions to protect the CWCB's instream flow right The CWCB
submitted its own proposed decree consistent with the Supreme Court's decision,

The Water Court has set a hearing November 28,2006, for further oral argument, based on
the Supreme Court's decision and the evidence produced at trial, regarding what terms and
conditions must be included within Central's decree to protect the CWCB's instream flow right
The CWCB must submit its proposed findings of fact on September 8, 2006,

2. Case No. 06CWl16, Application of Upper Gunnison River Water Conservancv District

In this case, the Upper Gunnison River Water Conservancy District ("the District") has
applied for a plan for augmentation wherein it proposes to augment the out-of-priority depletions
of all water rights with priorities junior to the RICD water right exercised in basin above the
RICD as against the priority of the RICD water right The District proposes to accept depletions
to the RICD from junior priorities for up to a cumulative total of two percent of the lowest
decreed flow rate (SA of270 cfs), The main issues raised for consideration are the ability to
subordinate to in-basin uses only, and the ability of a RICD water rights holder to obtain a decree
for the minimum stream flow necessary and subsequently to allow certain users access to that
water, thereby lowering the minimum stream flow to something less than minimum,