10 ‎(2)‎

• Board Meeting Date: 11/18/2007
• Description: ISF Section - Uncontested 2007 Instream Flow Appropriations
• 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: Linda Bassi, Chief
Stream and Lake Protection Section Dan 1V1cAuliffe
Acting CWCB Director
DATE: November 14, 2007
SUBJECT: Agenda Item 10, November 14-15, 2007 Board Meeting
Stream and Lake Protection -Uncontested 2007 Instream Flow
Appropriations-Addendum to Memo Regarding Willow Creek
This addendum to Agenda Item10 addresses issues raised by Moffat County in its Notice to
Contest and its October 16, 2007 letter withdrawing that notice, attached to the original memo
for this agenda item. Moffat County expressed concerns about the relationship between the
Willow Creek instream flow (ISF) water right and the Willow Creek Ditch water right, which
stores water in OVO Reservoir, located one mile above the upstream terminus of the ISF reach.,
and releases the stored water for diversion at the Willow Creek Ditch headgate, which is located
within the ISF reach. Moffat County believes that the proposed Willow Creek ISF will be
dependent upon reservoir releases to the Willow Creek Ditch to meet its decreed amount. While
at times, OVO Reservoir releases will make up part of the water that the CWCB will protect
under its Willow Creek ISF decree, staff's water availability analysis indicated that the ISF will
be met at most times by stream flows that are not the result of reservoir releases. Further,
releases from OVO Reservoir are only made in the irrigation season.
The primary question raised by the County is, assuming the Willow Creek ISF is decreed, what
position the CWCB would take if the Willow Creek Ditch owners filed a change of water rights
application to use that water right in a location adjacent to OVO Reservoir and to cease releasing
water from the reservoir for diversions at the historical point of diversion downstream. Staff has
consulted with the Attorney General's Office on this question and concluded the following:
1. The Willow Creek Ditch owners have the right and ability to change their water right for
use in an upstream location. The water court would condition such a change on no
expansion of the historical use of the water right and no injury to existing water rights on
Willow Creek.
2. The CWCB could not require the Willow Creek Ditch owners to continue to release
water from OVO Reservoir as was done historically
3. Any water rights owner on the stream, including the CWCB, could require the
maintenance of historical return flows to prevent injury to water rights. However, return
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