AG Opinion

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

At any time Staff verifies that an ISF water right is not being fulfilled as a result of water use against which
the ISF 4vater right is entitled to protection, the Staff shalt provide Proper Notice, including a description of
what the Board is doing in response to the situation.
9. MODIFICATION OF ISF RIGHTS.
The Board may modify any existing decreed ISF right according to the procedures set forth in this Rule.
`Modification" of an ISF right within the meaning of this Rule includes a decrease in the rate of flow
described in the existing ISF decree. segmenting an existing ISF reach into shorter reaches with the
result of decreasing the rate of flow in any portion of an ISF reach. or subtracting water from an ISF right
during any particular time period or season.
9a. Need for Modification.
Modification may be requested by the Staff or by any Person ~vho has filed a water right application on an
ISF reach or ~r:ho has applied for any governmental permit for facilities located in or near an ISF reach
and ~~~ho complies ~rrith Rules 9b. and 9c. Any request for modification. except by staff, shall be made in
v~~riting. submitted to Staff and such writing shall contain the following information:
~1 ~i name. address and telephone number of the Person seeking modification:
~2: strum or lake subject of request:
(3 - m~^~fi~~~r; '2quested:
~4- r~as~n `~r modification: and
lb the s~ertific data supporting the request.
9b. Need for Water.
Any Person ~,r~ho requests a modification of an ISF right must, as a precondition to the Board's
consideration of the request. establish a need for the water made available by the modification. Staff does
not have to comply with this rule and any governmental entity seeking to implement the terms of an
agreement specified in Rule 9f. does not have to comply with this section-
9c. Grounds for Modification.
No request for modification may be considered until the applicant establishes that one of the following
reasons for modification exists:
(1) Mistake.
An ISF right may be considered for modification if the requesting Person establishes that an error was
made in the calculations upon which the original or supplemental appropriation or enlargement to an
original appropriation was made.
(2) Excessive Flow.
An ISF right may be considered for modification if the requesting Person establishes that the ISF flow rate
is in excess of the amount of water necessary to accomplish the purpose of the original, supplemental or
enlarged ISF right when that right was appropriated.
9d. Recovery Implementation or Other Intergovernmental Agreement.