BOARD

• Board Meeting Date: 1/24/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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issues involving endangered species habitat that could affect future proceedings involving the
South Platte and North Platte Rivers as well as the proposed Platte River recovery program. We
are also concerned by a downstream state's effort to modify an equitable apportionment to take
water away from an upstream state. If the case hadn't settled, trial was expected to take well over
a year.

The settlement documents are finally close to final- or so we think. The goal is to
have all the parties' signatures by February 13th. We had a few comments, and they have
been incorporated into the documents. The case is on the agenda for executive session in
case there are any questions before we sign.

4. Forest Service applications for appropriative rights for springs, Case Nos. 99CW267
and 268, Water Division 4.

Issue: Whether the Forest Service may obtain appropriative decrees for springs for
livestock and wildlife watering, natural irrigation of wetlands, and fish.

Decision: None as yet. The applications were filed in December 1999. Both the Board and
the State Engineer filed statements of opposition.

Discussion: Appropriative filings for springs for livestock and wildlife watering have been
approved in many instances. These particular filings include some uses that raise legal issues,
such as the claim for fish and wetlands irrigation. Board and SEO staff, the Attorney General's
office, and the Forest Service have met once to explore settlement. There was a staff field trip to
check the factual basis for the filings, and some limiting language has been drafted to address
some of the legal issues. The Forest Service has characterized these filings as trying to work
within the state water rights system, rather than using its controversial administrative
mechanisms. After the field trip, however, it appears that most of these claims are the equivalent
of in,stream flows or minimum lake levels. Another meeting with the Forest Service has been
set to discuss how to proceed from here.

5. Forest Service Reserved Rights Cases, Case Nos. 81-CW-220 et aI., Water Division 2.

Issue: Is the U.S. Forest Service entitled to reserved rights for instream flows for
channel maintenance purposes?

Decision: After several years of negotiations, including several reversals of position from
the Forest Service, the parties began a formal settlement process supervised by ex-water judge
John Tracey early this year. In August the objectors sent a 60-page settlement proposal to the
Forest Service, The proposal was also forwarded to Lois Schiffer at the Department of Justice,
with a letter from Ken Salazar suggesting a meeting and warning that time might be rUlming out.
The Forest Service's response was very discouraging. Rather than stop negotiating, the objectors
proposed a technical committee to clarify how much water each side is offering, on what basis,
. since we seem to disagree on the impacts of each other's proposals. The main negotiations are