BOARD0321

• Board Meeting Date: 11/19/2003
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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Colorado Springs, and Englewood opposed intervention, primarily on the grounds of lack of
jurisdiction and lack of injury or interest for the state.
The U.S. and Northern moved to dismiss the Petition based on lack of jurisdiction and
failure to state a claim. The main arguments are lack of injury to the River District et aI., lack of
finality to the Bureau's operating plans, and lack of ripeness. As for the storage capacity of
Green Mountain Reservoir, the U.S. and Northern both urged that decrees dating from 1955 bar
any new claims for different storage requirements. Denver, Colorado Springs, and Englewood
all sat out briefing this subject to wait for the result.

11. Application of City of Central (Case No. 92CW168)

Assistant Attorneys General Lori Coulter and John Cyran represented the Board at the trial in
this case held in May 2003. In response to an issue raised by the City of Blackhawk, the
Division 1 water court issued a ruling stating that Central City's notice was deficient. The Court
stated it will not issue any ruling on any other matter until Central City has re-noticed its
application so that other potential objectors, if any, are given opportunity to file a statement of
opposition, and such objectors also given opportunity to present evidence. Central City only
published in Gilpin, and not in Jefferson County, Blackhawk argued, and the Court found, that
Central City should have published in both.

12. mCD Application of Upper Gunnison Water Conservancy District (Case No.
02CW038)

The Applicant filed its Closing Brief on October 17, 2003, and argued that the same
standards applied in the Fort Collins and Golden/V aillBreckenridge cases apply to its
application. In its Closing Brief filed on November 14, 2003, the State argued that Fort Collins
was superseded by both SB 212 and SB 216, and that the decisions in Golden, etc., are
superseded by SB 216. The Applicant also argued that the CWCB is without authority to
determine the amount of water because it is limited to finding facts concerning maximum
utilization, compact impairment, etc. The State disagreed, arguing that the term RICD (meaning
the minimum stream flow necessary for a reasonable recreation experience) is fully incorporated
into the factors on which the CWCB is required to make findings. The Applicant argued that its
intent determines the amount of water that should be granted. The State argued that SB 216 was
enacted to allow an objective body (the CWCB) to determine the amount of water. Further, we
argued that this case specifically demonstrated that the intent of the applicant cannot control
because there would be no limit on the amount of water claimed, and here, the evidence showed
that the Applicant had stated that one of its motives was "to prevent transbasin diversions," (an
inappropriate basis for claiming water). We await the Water Judge's decision.

13. South Platte Three-State Cooperative A2reement [NEW]

These discussions, involving Colorado, Nebraska, Wyoming and the U.S, Fish & Wildlife
Service, have been focused on developing a recovery program and avoiding jeopardy opinions
for water uses on the Platte. Although the discussions have gone on for years, the pace
quickened this summer. Meetings continued for what seemed like the entire month of October.
By the October 29-30 meeting, there was agreement on most outstanding issues between the
states and the FWS. The program is still on track to go into place in early 2005 assuming it
successfully emerges from NEP A review that starts in January 2004. A few highlights:

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