AG Opinion

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

(1) any absolute or conditional water right that is senior to an ISF right;
(2 j any senior conditional water right that seeks a finding of reasonable diligence;
(3) any junior absolute or conditional ~rvater right which was decreed prior to July 10, 1990, or had an
application for decree pending prior to July 10, 1990, unless the Board had filed a Statement of
Opposition to the absolute or conditional water right application prior to July 10, 1990; or
(4) any inundation of an ISF reach by water that does not have an absolute or conditional water right
if the inundation occurred prior to July 10. 1990.
7c. Request to Inundate.
Any Person seeking permission to inundate shall timely submit a written request for permission to
inundate to the Board Office. No requests for inundation will be considered or approved until the Person
seeking permission to inundate files a water court application outlining their storage plans or files plans
and specifications ti:~ith the State Engineer for a jurisdictional dam pursuant to §37-87-105. C.R.S. The
Board evil! consider the request to inundate in a timely manner.
7d. Staff Investigation.
After receiving the request to inundate. the Staff may seek the recommendations from the Division of
Wildlife. Division of Parks and Outdoor Recreation: Division of Water Resources. United States
Department ~f Ag.riculture and United States Department of Interior.
7e. Required Information.
In any ~~vritten request to inundate. the requesting Person shall at a minimum include information on the
follo~ing factors: the location of the inundation:. the size of the inundation, impact of the inundation on the
natural er,~ironment. any unique or rare characteristics of the ISF water right to be inundated, any
regulatory requirements or conditions imposed upon the applicant by federal. state and/or local
governments. all terms and conditions included in applicant's 4~rater court decree. and any compensation
or mitigation offered by the Person proposing the inundation.
7f. Determination of Interference.
In response to the request to inundate. the Board shall determine whether the proposed inundation
interferes ~;~iith an ISF right. When making this determination; the Board shall consider, without limitation.
the extent of inundation proposed and the impact of the proposed inundation on the natural environment
existing prior to the inundation.
7g. Consideration of Request to Inundate.
If the Board determines that a proposed inundation interferes with an ISF right, the Board may then
approve. approve with conditions, defer. or deny the request to inundate. In making this decision, the
Board shall consider all relevant factors, including, but not limited to (1) the extent of inundation proposed;
(2) the impact of the proposed inundation on the natural environment existing prior to the inundation; (3)
the degree to which the beds and banks adjacent to the ISF right subject to the inundation are publicly or
privately owned; (4} the economic benefits arising from the inundation; (5) the benefits to recreation and
downstream ISF segments arising from the inundation: (6) the degree to which the proposed inundation
will allow development of Colorado's allotment of interstate waters as determined by compact or
adjudication: and, (7) any mitigation or compensation offered to offset adverse impacts on the ISF right.
After considering all relevant factors. the Board shall take one of the actions set forth in Rules 7h. - 7k.
below.