14 Attorney General Report

• Board Meeting Date: 11/18/2008
• Description: Attorney General's Report and Legal Briefing
• Board Meetings - Doc Type: Memo

Page 2
claimed that Statements of Opposition may not be used to enter a case to support an application.
The Water Court denied the motion, finding that, in general, allowing a party to participate by
filing a statement in support is an acceptable way for parties to participate to assure that future
changes to the application do not impair their rights, and, in the case of the SEO and the CWCB,
for those state entities to fulfill their statutory duties. Trial remains set for March 2008.
WATER RIGHTS MATTER
5. Supreme Court Appeal, Case No. 06SA303
Appeal of Upper Eagle Regional Water Authority Case No. 03CW78, District Court, Water
Division 5: This case involves the Authority's table of monthly depletion rates. The Court
affirmed the water court's approval of the Authority's use of the table with strong reservations
about its accuracy. The Court also ruled that the State may challenge the table during the
retained jurisdiction period and in subsequent augmentation plan cases. The State filed a petition
for rehearing, which was granted in part and denied in part. However, the substance of the
decision was not changed. Based on new evidence of the Authority's actual mix of uses and
depletions obtained after the trial in Case No. 03CW78, the State is now challenging the table in
three cases under their retained jurisdiction provisions and two pending augmentation plan cases.
The evidence obtained and analyzed by the Division Engineer's office shows that the Authority's
table is inaccurate and results rounder-replacement of the Authority's out-of priority depletions.
The State continues to discuss settlement options with the Authority.
6. Application for Water Rights of Copper Mountain, Inc., Case No. OlCW304:
This case remains on a trial track, and the parties continue to discuss settlement options.
However, the Attorney General's office rs requesting authority to proceed to a six-day trial on
December 13,14,18-21, 2007. The Water Court previously ruled on four questions of law
raised by the State and Division Engineers and the CWCB. The Court ruled in favor of the State
on all four questions by finding: (1) augmentation rs a beneficial use of water rn Colorado; (2)
the recharge of tributary lake wells rs also a beneficial use; (3) the Engineers have standing to
raise the issue of injury to the CWCB's rnstream flow rights by changes to a plan for
augmentation arising after the CWCB has stipulated out of a case; and (4) the CWCB may
actively rejoin this case rn order to defend its existing stipulation. However, difficult
administrative issues relating to the subordination of water rights have prevented reaching a
settlement to date. The State has proposed a viable settlement rn this case and rs awaiting a
response from Copper Mountain and the Clinton Ditch & Reservoir Company. The primary
remaining issues involve (1) whether Copper Mountain will replace its out-of priority depletions
rn time, location and amount when the CWCB's rnstream flow right on Tenmrle Creek rs not
satisfied during the irrigation season; (2) whether Copper Mountain's condrtronal Tenmrle Creek
Pipeline water right to be changed rn this case was decreed just for the recharge of Copper
Mountain's lake wells or also for rrrrgatron, snowmaking, recreation, aesthetics and fish and
wildlife propagation; and (3) whether the senior water right decreed to the Clinton Gulch
Reservoir maybe used for augmentation purposes without a change of water right.