09 ‎(3)‎

• Board Meeting Date: 11/18/2007
• Description: ISF Section - Increases to ISF Rights, C.R.S. 37-92-102‎(4)‎‎(a)‎
• 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]
wuu . o~n cU. state. co.us
Bill Ritter, Jr.
Governor
TO: Colorado Water Conservation Board Members
H:uris D. Sherman
DNR Executive Director
FROM: Jeff Baessler
Stream and Lake Protection Section Dan NleAulit't'e
Acting CWCB Director
DATE: No`~ember 1, 2007
SUBJECT: Agenda Item 9, November 14-15, 2007 Board Meeting
Stream and Lake Protection Section -Increases to ISF Rights, C.R.S.
37-92-102(4)(x)
Discussion
At its January 2007 meeting, the Board asked staff to provide it with additional background
information on the statutory authority that allows for increasing an instream flow (ISF)
appropriation. In addition, the Board asked staff to address and clarify a number of policy issues
that were discussed at that meeting.l Staff has listened to the taped discussions from the January
2007 meeting to identify the specific issues raised; researched the history of past increases
approved by the Board; requested legal analyses from the Attorney General's office; and met
with the recommending entities to discuss the scientific rationale and biological analyses used to
justify increases in ISF appropriations. This memorandum will: (1) summarize the Board's
statutory authority; (2) pro~~ide a historical overview of past increases and the biological analyses
supporting such increases; (3) provide an overview of the process for appropriating an increase;
(4) summarize the AG's legal analysis regarding the res judicator issue; and (5) establish
guidelines to be used by recommending entities when they propose an increase to an existing
appropriation.
1) Statutory Authority
Section 37-92-102(4)(x) provides clear guidance regarding the authority and procedure for
increasing an instream flow water right. The statute reads as follows (emphasis added).
(a) Utilizing a public notice and comment procedure, the board, in its discretion, may
determine whether or not to appropriate minimum stream flows or natural lake levels, or
t At the January 2007 meeting, the Board asked if it could decrease an ISF appropriation. ISF Rule 9 (Modification
of ISF Rights) sets forth the procedures for decreasing an ISF water right. In the interest of devoting sufficient to
time to the subject of increases, staff will not address decreases in this agenda item and will do so at a future meeting
if requested by the Board.
Water Supply Protection • Fluud Protection • Stream & Lake Protection • Water Supply Planning & Finance
Water Conservation & Drought Planning • Intrastate ~F'ater Management & Development