Agenda Item 13

• Board Meeting Date: 3/18/2008
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

Page 2
5. Kansas v. Colorado.
The Supreme Court received the Special Master's Fifth and Final Report in Kansas v. Colorado •
and issued an order on February 25 setting out a schedule. Exceptions to the report are due April
10, and replies due 30 days later.
WATER RIGHTS MATTER
6. Application for Water Ri is of Cowper Mountain, Inc., Case No. O1CW304:
Water Division 5: This case involved a change of Copper Mountain's conditional Tenmile Creek
Pipeline water right from the recharging of lake wells for subsequent use for irrigation,
snowmaking and other uses to direct use for irrigation of 24 acres of Copper Mountain's golf
course. Copper sought to augment its out-of-priority depletions due to the golf course irrigation
with releases from Clinton Gulch Reservoir. The primary issues involved: (1) whether the senior
right decreed to the Clinton Gulch Reservoir was decreed for augmentation use and could be
used as a replacement source; (2) whether the Tenmile Creek Pipeline was decreed solely for
recharge purposes or included irrigation, snowmaking and other beneficial uses; and (3) whether
Copper should be required to replace its depletions in real time through releases from Clinton
Gulch Reservoir under that reservoir's junior water right. After prevailing on all of the legal
issues decided by the Water Court, the Colorado Water Conservation Board and the State and
Division Engineers were successful in negotiating a settlement with Copper Mountain and the
Clinton Gulch Ditch & Reservoir Company. Only the junior water right decreed to the Clinton
Gulch Reservoir will be used as an augmentation source, Copper agreed to abandon certain
groundwater rights decreed to its lake wells, and Copper agreed to replace its depletions in real
time when the CWCB places a call on Tenmile Creek unless Copper can make such
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replacements through a decreed exchange or substitution senior to the CWCB's water right. The
trial set for last December was vacated and a final decree consistent with the settlement has now
been entered by the Water Court.
7. Concerning the Water Ri is Application of Avon Case No. OSCW258
The CWCB and the Applicant have settled and agreed upon terms for the proposed RICD
decree. The Board had issued its Findings and Recommendations to the Water Court
recommending approval of the application, and the proposed decree and stipulation are in
accordance with those Findings and Recommendations. Although the stipulations have been
signed between all the parties, the City of Minturn has stated that it cannot approve of the decree
as agreed to by the CWCB and the Applicant because the decree included the term
"presumptively valid" to describe the CWCB's Findings and Recommendations. The City of
Minturn cannot legally force a change to the proposed decree because it is no less restrictive than
earlier proposed decrees.