AG Opinion

• Year: 2009
• Instream Flow Rules - Doc Type: Post Rulemaking Documents

The Board shall file a change of water right application or other applications as needed or required with
the water court to obtain a decreed right to use water for ISF purposes under all contracts or agreements
for acquisitions of water, water rights or interests in water under section 37-92-102(3), including leases
and loans of water. The Board shall file a joint application with the Person from whom the Board has
acquired the water or a Person who has facilitated the acquisition, if requested by such Person. The
Water Court shall determine matters that are within the scope of section 37-92-305, C.R.S. In a change of
water right proceeding, the Board shall request the Water Court to:
(1) Verify the quantification of the historical consumptive use of the acquired water right:
(2) Verify the identification. quantification and location of return flows to ensure that no injury will
result to crested water rights and decreed conditional water rights:
(3) Include terms and conditions providing that:
(a ~ The Board or the seller, lessor. lender, or donor of the water may bring about the
beneficial use of the historical consumptive use of the changed water right downstream of
the ISF reach as fully consumable reusable 4vater. subject to such terms and conditions
as the water court deems necessary to prevent injury to vested water rights and decreed
conditional ti~~ater rights: and
(b ~ •~"then the Board has not identified such do~rrnstream beneficial use at the time of the
change of 4vater right. the Board may amend the subject change decree. if required by
the Division Engineer. to add such beneficial use(s) of the historical consumptive use
downstream of the ISF reach at the time the Board is able to bring about such use or
reuse. ~ti~ithout requiring requantification of the original historical consumptive use
calcu!ati~n:
and
(a_~ Decree the method by which the historical consumptive use should be quantified and credited
during the term of the agreement for the lease or loan of the water right pursuant to section 37-
G2-1 X2(3. C.R.S.
6j. Limitation on Acquisitions.
The Board may not accept a donation of water rights that were acquired by condemnation: or that would
require the removal of existing infrastructure without approval of the current owner of such infrastructure.
6k. Temporary Loans of Water to the Board.
The Board may accept temporary loans of water for instream flow use for a period not to exceed 120
days in any one year. in accordance with the procedures and subject to the limitations set forth in section
37-83-105. C.R.S.
(1) Within 5 working days after receiving an offer of a temporary loan of water to the Board for
temporary instream flow use, the Director will provide a response to the proponent and, unless
the proposed loan has no potential value for instream flow use, staff will coordinate with the
proponent on preparing and submitting the necessary documentation to the State and Division
Engineers required by sections 37-83-105(2)(a)(I) and (2)(b)(I), C.R.S., and providing the public
notice required by section 37-83-105(2)(b)(II), C.R.S.
(2) Provided that the State Engineer has made a determination of no injury pursuant to section 37-
83-105(2)(a)(lll), C.R.S.. the Board hereby delegates authority to the CWCB Director to accept
temporary loans of water for instream flow use in accordance with the procedures and subject to