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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Issues Raised in Public Rulemaking Process

Attorney General's Office informal legal opinion on issues:

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- Inundation rule is within the scope of the statutory authori~
delegated to the Board by the General Assembly in establishing
the ISF Program.
- The CWCB could not accomplish the mission of the ISF
Program without the ability to protect its ISF water rights from
proposed actions that would defeat the purpose for which the
ISF water rights were appropriated.
- Inundation rule did not constitute a taking because
· in majority of cases, its application would not prohibit all
economic beneficial use of the subject property, and
. inundation is prohibited by underlying provisions of water,
tort and property law.

- The ISF Rules, including ISF Rule 7, do not violate or modify any
existing statute.

Adoption of the Rules

· After consideration of all publiC input and two informal legal opinions
of Attorney General's Office, the Board adopted the ISF Rules,
including ISF Rule 7. During this process, the Board:

- Concluded that inundation of all or a portion of an ISF stream
reach may be an interference with the Board's usufructuary
rights which were confirmed by the ISF decree.

- Considered its decree for an ISF water right to represent a
property right to be used to preserve the natural environment to
a reasonable degree.

- Recognized both dewatering and inundation as potential injuries
to ISF water rights.

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