AG Opinion

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

8h. Exclusion from De Minimis Rule.
The Board may at any time exclude any stream reach or lake, or any portion thereof, from application of
the De Minimis ru{e.
8i. Pretrial Resolution.
Staff may negotiate a pretrial resolution of any injury or interference issue that is the subject of a
Statement of Opposition. The Board shall review the pretrial resolution pursuant to the following
procedures:
(1) No Injury.
In the event the pretrial resolution includes terms and conditions preventing injury or interference and
does not involve a modification; or acceptance of injury or interference with mitigation. the Board is not
required to revie~r and ratify the pretrial resolution. Staff may authorize its counsel to sign any court
documents necessary to finalize this type of pretrial resolution without Board ratification.
(2) No Injury/Modification.
In the e;ren~ the pretrial resolution addresses injury or interference through modification of the existing ISF
decree. the process set forth in Rule 9 shall be followed prior to any Board decision to ratify the pretrial
resolution.
(3) Injury Accepted with Mitigation.
In the e~°e~t a proposed pretrial resolution will allow injury to or interference v-rith an ISF or natural lake
level NLL- =titer right. but mitigation offered by the applicant could enable the Board to accept the injury
or interference :°~hile continuing to preserve or improve the natural environment to a reasonable degree,
and if the proposed pretrial resolution does not include a modification under ISF Rule 9. the Board shall:
~a ~ Conduct a preliminary review of the proposed pretrial resolution during any regular or
special meeting to determine °rvhether the natural environment could be preserved or
improved to a reasonable degree °~nrith the proposed injury or interference if applicant
provided mitigation; and
tb At a later regular or special meeting; take final action to ratify: refuse to ratify or ratify with
additional conditions.
(ci No proposed pretrial resolution considered pursuant to this Rule 8i.(3) may receive
preliminary review and final ratification at the same Board meeting.
(d The Board shall not enter into any stipulation or agree to any decretal terms and
conditions under this Rule that would result in the Division of Water Resources being
unable to administer the affected ISF or NLL water right(s) in accordance with the priority
system or with Colorado water law.
(e) To initiate CWCB staff review of an Injury with Mitigation proposal, the proponent must
provide the following information in writing:
Location of injury to ISF or NLL water right(s) (stream(s) or lake(s) affected, and
length of affected reach(es));
Quantification of injury (amount, timing and frequency):