BOARD00168 ‎(2)‎

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

. <

4

· 'Whether the Board should file Statements of Opposition to applications for .
conditional storage rights if the conditional right sought would result in inundation
of a stream segment upon which the Board holds an ISF appropriation, and,

· Were statements of opposition to be filed, what terms and conditions the Board
can and should seek to protect its ISF appropriation?"

This request initiated the lengthy public process set forth in Exhibit 2 that resulted in the
adoption of ISF Rule 7. On July 10, 1990; to address the interim period prior to
promulgating rules, the Board adopted a policy providing that SOPs would be filed in all
cases proposing to inundate an ISF water right, with the Board deciding on a case-by-
case basis whether to allow inundation and w~at terms and conditions it would require
to protect the affected ISF water rights.

B. Issues Raised in Public Rulemakina Process

,
As one would expect, various interest groups'; positions on inundation covered a wide
range, with the extremes summarized here very briefly, Water development advocates
asserted that inundation is never injury, that :the Board has no statutory authority to
prevent inundation, and that the proposed rulle constituted a "taking." Environmental
advocates contended that inundation alwavs cc;>nstitutes injury to an ISF water right and
that the Board has no statutory authority to allow such injury.

During the public review period for the proposed rules, some members of the water .
development community questioned the constitutionality and legality of the rule
regarding inundation, At the Board's request, ;the Attorney General's Office issued an
informal legal opinion regarding the "Constitutionality and Legality of Rules and
Regulations Concerning the ISF Program" datett September 9, 1993. In that memo, the
AG's Office opined that the proposed rule on I inundation was within the scope of the
statutory authority 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.

C. Adoption of the Rules

After considering all of the public input and tWo informal legal opinions issued by the
Attorney General's Office, the Board adopted the ISF Rules, including ISF Rule 7. The
Board concluded that inundation of an ISF wa~er right mal be an interference with the
Board's usufructuary right confirmed by the I~F decree, The Board considered its
decree for an ISF water right to represent a property right to be used to preserve the
natural environment.s In this context, the terrP "interference" means "any action by a
third party that hampers the Board's ability t? preserve the stream habitat or other

4 Statement of Basis and Purpose for Rules and Regulations Concerning the Colorado Instream Flow and .
Natural Lake Level Program ("SBP"), date, Section 8-lnundation of ISF Rights, p. 5. .
5 SBP, Goals of ISF Program, p.1.