08 ‎(3)‎

• Board Meeting Date: 11/18/2007
• Description: ISF Section - Contested Instream Flow Appropriation Hearing - Alder Creek
• Board Meetings - Doc Type: Memo

STATE OF COLORADO
Colorado Water Conservation Board
Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203 _ - _
Phone: [phone]
Fax: [phone]
wtntn-.c~a-cb.state.co.us . -
Bill Ritter, Jr.
Governor
TO: Colorado Water Conservation Board Members
Harris D. Sherman
DNR Executive Director
FROM: Jeff Baessler
Stream and Lake Protection Section Dan ivleAuhtt~e
Acting CWCB Director
DATE: November 1, 2007
SUBJECT: Agenda Item S, November 14-15, 2007 Board Meeting
Stream and Lake Protection -Contested Instream Flow Appropriation
Hearing -Alder Creek
Discussion
The Board was provided detailed information regarding all field data, studies and analyses for this
stream segment at its January 24, 2007 Board meeting. At that meeting the Board declared its
intent to appropriate an instream flow water right on Alder Creek. On March 26, 2007 Dr. Timothy
McLeod filed a notice to contest the Appropriation. Trout Unlimited subsequently filed for
Contested Hearing Party Status in accordance with Rule 51.(1) of the Instream Flow Rules. Other
contested parties include the Bureau of Land Management (the recommending entity), the Division
of Wildlife and the CWCB staff. The Jackson County Water Conservancy District filed for
Contested Hearing Participant Status in accordance with Rule Sm.(1).
On July 17, 2007, David Shohet withdrew as counsel for Dr. McLeod in this proceeding. However,
Dr. McLeod did not withdraw his notice to contest the appropriation. On July 18, 2007 staff's
attorney, Amy Stengel, received an e-mail from Dr. McLeod (attached) which outlined his desire to
have the louver terminus of the proposed ISF moved upstream to his property line. In exchange, Dr.
McLeod indicated that he would abandon his claim to a senior historic irrigation diversion that he
maintains title to which is located within the proposed ISF reach. Dr. McLeod also indicated that he
could no longer afford to financially fight the state on this matter and indicated that he would be
asking Director Smith to convey his proposal to the Board.
All parties, with the exception of Dr. McLeod prepared and distributed prehearing statements on
this matter on July 16, 2007. (All materials regarding this matter can be found in the Board's
Badger and Alder Creek, November 15, 2007 Hearing Notebook) In addition, a prehearing
conference took place on July 24, 2007 and all parties participated in the conference with the
exception of Dr. McLeod. A rebuttal statement was also prepared by the AG's office on behalf of
the CWCB staff on August 15, 2007. In that statement, staff asserted that Dr. McLeod had the
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