BOARD00169 ‎(2)‎

• Board Meeting Date: 5/22/2007
• Description: Attorney General's Report
• Board Meetings - Doc Type: Memo

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remaining technical issues during the week of May 14. Regardless of these remaining technical
issues, it is clear that Colorado will not have any additional depletions to replace under either
State's cal ibration of the model for this 10 year accounting period.

WATER RI GHTS MATTER

7. Supreme Court A~1pea1. Case No. 06SA303

Appeal of Upper Eagle Regional Water Authority Case No. 03CW78, District Court Water
Division 5: All of the Supreme Court briefs have been tiled in this appeal, and the Court has
scheduled oral argument for Thursday. June 14.2007, at 9:00 a.m. On April 27. 2007, the
Authority submitted a proposed settlement to the CWCB and the State and Division Engineers.
The proposed settlement is still under review at this time.

8. Application for Water Rights of Copper Mountain, Inc., Case No. 01 CW304:

This case remains on a trial track. The Water Court recently ruled on four questions oflaw
raised by the State and Division Engineers and the CWCB. The Court ruled in favor of the State
on all four questions by finding: (1) augmentation is a beneticialuse of water in Colorado: (2)
the rcchargc of tributary lake wells is also a beneficial use; (3) the Engineers have standing to
raise the issuc of injury to the eWCB's instream flow rights by changes to a plan for
augmentation arising after the CWCB has stipulated out of a case; and (4) the CWCB may
actively rejoin this case in order to defend its existing stipulation. The State remains open to
settlement negotiations. However. difficult administrative issues relating to the subordination of
water rights have prcvented reaching a settlement to date.

9. Application ofCWeB. Fall River ISF 95CW256

This is an instream now application on the Fall River in Clear Creek County which is set for a 3-
day trial from August 27_29th. Central City is the remaining opposer in this case.

Central City has asserted that there is insutlicient water available for the claimed ISF reach and
that Staff has not demonstrated that the natural environment can be protected to a reasonable
degree. Central City's Fall River Pipeline exchange right was decreed in ncw 168 for 4.1cfs
with a priority datc of August 25, 1995. Ccntral City is also challenging the CWCB's claimed
appropriation date of July 24, 1995 for the Fall River ISF on the grounds that the priority date is
actually December 27, 1995, the datc of the Board's water court filing. Staff and the AG's office
maintain that the CWCB may base its priority date on the date the Board approves Staff's final
recommendations at its general meeting.

At this time, the parties are continuing to discuss potential settlement. The CWCB staff is
working with Central City's engineers to explore alternative modeling schemes on the water
availability question. Staff and the AG's office will request a discussion of litigation strategy
during the Executive Session at the Board's May meeting