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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natural environment for which the ISF right was originally appropriated."e The Board
recognized both dewatering and inundation as potential injuries to an ISF water right?
A copy of the portion of the Statement of Basis and Purpose for Rules and Regulations
Concerning the Colorado Instream Flow and Natural Lake Level Program ("SBP")
pertaining to ISF Rule 7 (referred to in the SSP as Section 8) is attached as Exhibit 3.

3. Bioloaical Impacts of Chanaina a Flowina Stream to an On-channel
Impoundment of Water

As a basis for understanding how inundation of an ISF water right injures or interferes
with that right, it is essential to know what can occur (1) biologically, (2) hydrologically,
and (3) hydraulically on a reach of stream when it is changed to an on-channel
impoundment. When water is impounded on a stream reach, significant changes are
likely to occur to temperature, dissolved oxygen concentrations, habitat, fish movement,
flow regime and natural transport of sediment, nutrients, metals and organic materials
downstream. Exhibit 4 contains (1) an illustration of these potential changes compiled
by DOW and CWCB staff and (2) a letter dated May 11, 2007 from John Roach, Ph.D,
Aquatics Specialist for Trout Unlimited, explaining how on-channel impoundments can
affect free-flowing streams. Mark Uppendahl, DOW, will give a presentation on these
effects at the Board meeting.

4. Leaallssues Related to Inundation

The process leading up to the adoption of the ISF Rules (including ISF Rule 7) in 1993
included legal analyses of whether inundation of an ISF water right constituted injury,
Dewatering of the stream had always been acknowledged as an injury that the CWCB
could protect against. Water development advocates argued that dewatering was the
only type of injury that Colorado water rights are entitled to prevent, and that in
Colorado River Water Conservation District v. Colorado Water Conservation Boarcf
("the Crystal River case"), the Supreme Court recognized dewatering as the only type of
injury that the ISF Program was designed to prevent. It appears that this argument was
based upon the Court's statement that

The legislative intent is quite clear that these appropriations are to protect and
preserve the natural habitat and that the decrees confirming them award
priorities which are superior to the rights of those who may later appropriate.
Otherwise, upstream appropriations could later be made, the stream dried up,
and the whole purpose of the legislation destroyed.9

In response to this argument, the AG's Office agreed that the Supreme Court had
explicitly recognized dewatering as injury to an ISF water right. However, the context of
that statement did not indicate that prevention of dewatering is the only protection
available to ISF water rights. The Supreme Court also stated that technical questions

6 SSP, Section 8-lnundation of ISF Rights, p. 5-6.
7 SSP, Section 8-lnundation of ISF Rights, p. 6.
8594 P.2d 570 (Colo. 1979).
9 594 P .2d at 575.