BOARD00168 ‎(2)‎

• Board Meeting Date: 5/22/2007
• Description: ISF Section - ISF Rule 7 - Inundation of ISF Rights
• Board Meetings - Doc Type: Memo

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ST A TE OF COLORADO

Colorado Water Conservation Board

Department of Natural Resources
1313 Shennan Street, Room 721
Denver, Colorado 80203
Phone:(303)~3441
FAX: [phone]
www.cwcb.state.co.us

MEMORANDUM

Bill Ritter, Jr.
Governor

To:

ation Board Members

Harris D. Sherman
Executive Director

From: Linda Bassi
Stream and L

Rod Kuharich
CWCB Director

Dan McAuliffe
Deputy Director

Date: May 14, 2007

Re: Agenda Item No. 10, May 22-23,2007 Board Meeting: ISF Rule 7:
Inundation of Instream Flow Water Rights

The Board has asked staff to provide background information on Rule 7 (Inundation of
ISF Rights) of the Rules Concerning the Colorado Instream Flow and Natural Lake
Level Program ("ISF Rules"). Some Board members have raised questions and
concerns about whether inundation of an instream flow ("ISF") water right by, an on-
channel impoundment constitutes injury to the ISF water right, and if so, what the nature
of the injury would be. This memorandum will (1) summarize ISF Rule 7; (2) provide a
history of how the eWCB developed and adopted the Rule; (3) explain the biological
impacts of changing a flowing stream to an on-channel impoundment of water; and (4)
discuss the legal issues related to the impacts of inundating an ISF water right.

1. Summary of ISF Rule 7

The bulk of ISF Rule 7 sets forth the procedure governing a person's submittal of and
the Board's consideration of a request to inundate an ISF water right. The Rule
identifies factors that the Board must consider when determining whether to approve or
deny a request to inundate, and findings that the Board must make as grounds to deny
a request to inundate. Rule 7 is summarized below. A full copy of the rule is attached
as Exhibit 1.

7. Provides that "Inundation of all or a portion of an ISF stream reach or lake may
be an interference with the Board's usufructuary rights that have been acquired by