ISFRulesWkshpMemo

• Board Meeting Date: 5/20/2008
• Description: ISF Section - Proposed Revisions to ISF Rules Workshop
• Board Meetings - Doc Type: Other

water right on a stream where it has not filed a Statement of Opposition to a water court
application, it still expects the Division Engineer to enforce the ISF call against all water rights
that are junior to the ISF water right or diverting out-of priority. In the last year, staff has
requested the Division Engineer to notify water court applicants in the Summary of Consultation
of the possibility of being curtailed or administered as part of enforcement of an ISF call.
Currently, for water court applications that will result in a de minimis impact, staff sends a letter
to the applicant providing notification that: (1) the Board is not filing a statement of opposition to
the application; and (2) the CWCB may place a call for its ISF water rights in the vicinity of the
subject application that will be enforced and administered within the prior appropriation system.
2. Rule 8i.(3) -Injury Accepted with Mitigation (Attachment 2)
The CWCB adopted Rule 8i.(3) ("the IWM Rule") in 1994 as part of the original ISF Rules. The
CWCB ISF Subcommittee extensively reviewed and discussed the IWM Rule in 2006, resulting
in the May 5, 2006 ISF Subcommittee's Recommendations on Implementation of ISF Rule 8i.(3)
(second part of Attachment 2). Staff proposes to incorporate the process for submittal and staff
review of IWM proposals and the factors the CWCB may consider in evaluating such proposals
into the IWM Rule. To refresh the Board's memory, the goal of an IWM case resolution is to
provide mitigation that enables the CWCB to continue to preserve or improve the natural
environment to a reasonable degree in spite of the injury. In an IWM case resolution, the CWCB
accepts less than full protection of an ISF water right, but no reduction or segmentation of the
ISF water right is involved. The proposed additions to the IWM Rule will provide notice to
water users of what information they need to submit to initiate staff review of an IWM proposal
and what factors the Board will consider in evaluating an IWM proposal.
3. Rule 6 -Acquisition of Water, Water Rights or Interests in Water for Instream
Flow Purposes (Attachment 3)
Staff is proposing revisions to ISF Rule 6 to implement HB 08-1280, signed by Gov. Ritter on
April 22, 2008. HB 1280 requires the Board to adopt criteria for evaluating proposed leases or
loans of water, including but not limited to, criteria addressing: (1) public notice; (2) the extent to
which the leased or loaned water will benefit the natural environment; and (3) calculation of the
compensation paid to a lessor of water based upon the use of the water after the term of the lease.
HB 1280 also establishes: (1) specified conditions that must be met as part of the Board's
approval of a proposed loan or lease of water; (2) provisions that must be included in all
agreements for loans or leases of water under section 37-92-102(3)(b), C.R.S.; and (3) actions
that the Board must take in connection with loans or leases of water. The proposed revisions to
ISF Rule 6 attached to this memo are staff's first attempt to incorporate all of the above into the
Rule. Staff anticipates adding to the revisions based upon the Board's discussion at the Rules
Workshop and public input on the Rules revisions.
4. Financial Policy 19 -Expenditures of Funds for Water Acquisitions for Instream
Flow Use Pursuant to Section 37-60-123.7, C.R.S. (Attachment 4)
HB 08-1346 (CWCB's Water Projects Bill) established an annual appropriation of $1,000,000 to
the Board to pay for the costs of acquiring water, water rights, and interests in water for Instream
flow use. HB 1346 provides that the primary priority for expenditures of these funds shall be the
costs of water right acquisitions for existing or new ISF water rights to preserve the natural
environment to a reasonable degree. The funds also may be used in limited circumstances for
the costs of water acquisitions to: (1) preserve the natural environment of species that have been
listed as threatened or endangered under state or federal law, or are candidate species or likely to
become candidate species; (2) support wild and scenic alternative management plans; or (3)
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