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• Board Meeting Date: 9/18/2007
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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some water users. The new stipulation contains terms and conditions the U.S. will seek to
include in the final decree instead of the terms in the previous stipulations. The new stipulation
eliminates the selective subordination and use of the Black Canyon as an augmentation source
that the State had objected to. The new stipulation instead provides for a general subordination
by the Black Canyon from 1933 to 1957, just senior to the Aspinall priority. It also recognizes
that the Division Engineer will administer a subordination by the Black Canyon to the first
60,000 acre feet of water accounted against Aspinall in order to operate the Aspinall
augmentation plan. The parties are now involved in global mediation using Chris Moore as the
facilitator. Mediation sessions are scheduled to continue through December 2007.

WATER RIGHTS MATTER

5. Upper Eagle Regional Water Authority, Supreme Court Appeal. 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 filed in this appeal, and oral argument
was held June 14,2007. 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.

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

This case remains on a trial track. The Water Court recently ruled on four questions of law
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 beneficial use of water in Colorado; (2)
the recharge of tributary lake wells is also a beneficial use; (3) the Engineers have standing to
raise the issue of injury to the CWCB'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 prevented reaching a settlement to date.

7. Application ofCWCB on Fall River. 95CW256

This is an instream flow application on the Fall River in Clear Creek County which was set for a
3-day trial from August 27_29th. Central City has asserted that there is insufficient 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 92CW168 for 4.lcfs with a priority date of August 25, 1995. Central 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 date 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.