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• Board Meeting Date: 7/11/2007
• Description: ISF Section - Hat Creek Water Right Acquisition
• Board Meetings - Doc Type: Memo

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2. The Hat Creek Ditch Water RiQht

The Hat Creek Ditch historically diverted water from Hat Creek, approximately 1/2 mile
upstream from the confluence with East Brush Creek. The Hat Creek Ditch water right, Priority
No. 335, was decreed for 2.0 cfs for irrigation purposes by the Eagle County District Court on
July 17, 1916 in Civil Action No. 673 with an appropriation date of March 6, 1914. The decree
identifies approximately 100 acres of land adjacent to East Brush Creek to be irrigated via the
Hat Creek Ditch. However, the actual irrigated acreage appears to have been closer to 22
acres. The location of the land irrigated via the Hat Creek Ditch indicates that the irrigation
return flows likely accrued to East Brush Creek, with the water diverted through the Ditch being
nearly 100% depletive to Hat Creek.

3. Summary of Proposed Acquisition

The Colorado Water Trust is proposing to convey the Hat Creek Ditch water right by Bargain
and Sale Deed to the Board for instream flow use. The proposed Donation and Acquisition
Agreement, which includes the form of the Deed to be used, is attached as Exhibit 1. The
proposed acquisition agreement contains the following terms and conditions (paraphrased from
the proposed agreement):

a. Within one year after receiving title to the Hat Creek Right, the Board shall (1) file an
application with the Water Court to change the Hat Creek Right to allow instream flow
use exclusively by the Board; (2) keep the C\NT informed of all significant proceedings in
the change case; (3) consult with and obtain approval from the C\NT prior to entering
into any stipulation in the change case; and (4) provide the Trust with a copy of the final
decree once entered.
b. The Board will be responsible for costs of the change case and the C\NT will provide
reasonable assistance to the Board in the change case.
c. The Board commits to use the Hat Creek Right for instream flow purposes to preserve
the natural environment to a reasonable degree and to take all reasonable steps to
enforce said instream flow rights and protect them from injury.

4. Revision to Donation and Acquisition AQreement Since Mav 2007

At the May 2007 CWCB meeting, Board members discussed and requested a revIsion to
section 4 of the Donation and Acquisition Agreement. That provision is set forth below, with
language added since May shown in bold type. The additional language is intended to address
(1) the Board's concerns that section 4 might interfere with the Board's discretion in enforcing its
ISF water rights and implementing the ISF Rules and (2) the C\NT's concern that the Board
might allow the donated water right to be injured under an injury with mitigation pretrial
resolution under ISF Rule 8i(3).

4. Enforcement. If the Board successfully obtains a decree in the Change
Proceeding, the Board commits to use the Hat Creek Right, as changed, for instream flow
purposes to preserve or improve the natural environment to a reasonable degree, consistent
with the terms of the decree, and to take all reasonable steps to enforce those rights for
instream flow purposes and protect them from injury. If the Board receives a request to
consider injury with mitigation for the portion of Hat Creek benefited by the change of the
Hat Creek Right, the Board shall promptly inform the Trust of such request, consult with the
Trust regarding such request, and not take any action that, in the CWCS's and Trust's
reasonable judgment, would impair the benefits to Hat Creek resulting from the Trust's

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