16 ‎(3)‎

• Board Meeting Date: 1/23/2008
• Description: ISF Section - Proposed terms and conditions, Jackson County 2008 New Appropriations
• Board Meetings - Doc Type: Memo

On February 14, 2006, CWCB, BLM and DOW Staff met with the JCWCD and others to discuss
the proposed recommendations. At that meeting, although generally opposed to the
recommendations, JCWCD officials indicated to Staff and the BLM a willingness to consider
proposed settlement language. As a result, the BLM again recommended the streams at the
February 2006 workshop and Staff provided an additional notice of these streams in March of
2006 for consideration by the Board in January 2007. In June 2006, Staff requested that the
Attorney General's ("AG") Office evaluate settlement language from previous ISF
appropriations in North Park that JCWCD and the CWCB negotiated and agreed to in 1979 and
1992. Staff also requested that the AG provide new language that would protect JCWCD water
users with regard to the water which was secured under the Nebraska v. Wyoming Supreme
Court Decree, while avoiding issues related to selective subordination of ISF water rights. After
meeting with Staff from the AG's office and reviewing their legal analyses, Staff provided
JCWCD with draft settlement language for their consideration in November of 2006. This
language attempted to address future irrigation uses as contemplated by the Supreme Court
equitable apportionment decree while still protecting the proposed ISF recommendations from a
general subordination to all new water rights, irrigation or otherwise, that would potentially be
developed until such time as JCWCD had fully developed its irrigation rights under that decree.
JCWCD reviewed the proposed language, but didn't feel that it provided adequate protection. In
addition, they indicated that they had retained counsel to represent them with regard to the
proposed recommendations. In mid-December, JCWCD contacted Staff and indicated that they
had decided against further negotiations and requested that Staff bring the recommendations to
the Board at its January 2007 meeting for final consideration. In late December, 2006 Staff
began receiving letters from numerous entities and individuals both opposing and supporting the
proposed recommendations. Numerous issues were raised in these letters with regard to these
proposed instream flow recommendations. BLM and the DOW subsequently provided letters to
Staff requesting a one year delay in order to provide time to develop a reasonable solution to the
issues raised in the letters.
At its January 2007 meeting, Staff provided the Board with a confidential memorandum from
Assistant Attorney General Paul Benington to the Board regarding an evaluation of the Jackson
County settlement issues. In addition, Staff requested that the Board table the recommendations
for a period of one year and direct Staff to continue to try and negotiate settlement language with
the JCWCD. In March 2007, Staff once again provided notice that the ISF recommendations
would be brought to the Board for consideration at its January 2008 meeting. On October 12,
2007, Staff received proposed settlement language (attached) from the JCWCD. Staff reviewed
the language with the AG's office and determined that it would still result in a general
subordination of the proposed appropriations to all future uses until such time as Jackson County
had fully developed its irrigation rights under the previously mentioned equitable apportionment
decree.
On January 8, 2008, CWCB and AG Staff met with JCWCD representatives and their counsel to
determine if there was any common ground that could result in a mutually acceptable resolution
of the issues. Although no settlement was reached, both parties agreed that the collection and
analysis of additional data on irrigation uses in the County could shed light as to whether the
proposed ISF rights would interfere with the development of future irrigation rights under the
equitable apportionment decree. Since CWCB is currently under contract with Leonard Rice to
produce a DSS water allocation model, as well as providing ground truth for county irrigation
uses, the parties believe that a maximum two year delay in the appropriations would provide time
for the necessary data to be analyzed relative to the ISF recommendations.