BOARD00155 ‎(2)‎

• Board Meeting Date: 3/13/2007
• Description: ISF Section - 2007 New Appropriations
• Board Meetings - Doc Type: Memo

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Dear Dr. McLeod,

I Thank you for the letter outlining your concerns regarding the Alder Creek instream flow (ISF)
r commendation. I will openly discuss your concerns and proposed solution with the Colorado Water
Conservation Board (CWCB) for their consideration as well as provide them a copy of the letter. However,
as requested I would like to provide you with my thoughts on your request and an alternate solution that I
believe adequately resolves your concerns.
First, CWCB staff does not consider land ownership and associated boundaries in its evaluation of
proposed ISF segments. The purpose of the ISF program is to preserve the water dependent natural
environment to a reasonable degree. That natural environment may of course exist on both public and/or
private property. However, staff does evaluate an ISF recommendation from the standpoint of 1) Is there a
natural environment that can be preserved in the proposed reach? 2) Is water available for the purpose of
preserving the natural environment? and 3) Can the natural environment exist without material injury to
water rights? I believe the answer is yes to each of these questions in regard to Alder Creek. The second
question regarding water availability does at times factor into a decision on where to end a proposed ISF
reach. For Alder Creek, it was determined that water may not be available for appropriation immediately
downstream of the Alder Creek diversion and as a result, that point was chosen as the lower terminus for
the ISF recommendation.
Although, staff can not recommend ending the reach at your property line, I do understand your
concerns and believe that we can address most of them through stipulated language that will protect your
interest while allowing the ISF appropriation to move forward. The terms of such a stipulation could be
included in our ISF decree. For example:

1) You have mentioned concern over one or more historic diversion points and a willingness not to use
I of those points in the future. I have discussed the location of the water rights on this stream with the
sion 3 Engineer and he has indicated that there are actually only two valid diversion points on Alder
reek in the reach in question. The Alder creek ditch right was originally decreed at the historic point of
diversion which appears to be in the middle of the proposed ISF reach. Sometime later one-half of that
right was transferred to the "current" point which is the proposed lower terminus of the ISF segment. In
essence there are two decreed points of diversion, one located on your property and one located upstream
above your property line. You had mentioned that it was your belief that these diversion points could be
"lost" or "closed" as a result of the proposed ISF and that you object to this. However, both of these
diversion points would be senior to the proposed ISF right under Colorado Water Law. In other words, the
ISF would not be able to curtail or in any way affect the operation of these historic water rights. However,
staff would still be willing to stipulate to this fact.

2 ) Even if there are other historic uses of water on your property that may not be decreed or recognized
by the Division Engineer, the ISF statute contains the following provision that requires the Board to
recognize those diversion. C.R.S ~ 37-92-102(3)(b) "Any such appropriation shall be subject to the present
uses or exchanges of water being made by other water users pursuant to appropriation or practices in
existence on the date of such appropriation, whether or not previously confirmed by court order or decree."
Again, staff would recognize those historic uses per this statutory requirement and would stipulate to this in
any proposed decree for an Alder Creek ISF right.

3) You mentiond that there are Beaver Ponds near your western property line on Alder Creek, and you
would not want the ISF filing to interfere with this natural water storage process. With regard to the ponds,
staff would consider them as part of the natural environment and would therefore be willing to stipulate to
eguage that indicates that the CWCS will not use its filing as a basis to require removal of the Beaver
ds. However, you should check with the Division 3 Engineer regarding these dams as it is my
understanding that there is a statute that provides for obstruction removal when those obstruction interfer

3/12/2007