Prehearing Statement of Trout Unlimited

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II. DISPUTED FACTUAL AND LEGAL ISSUES AND TU's POSITIONS The Colorado Division of Wildlife has designated the Blue River below Dillon Reservoir to the confluenee with the Coiorado River, including the reach of the Blue River for which Silverthorne claims RICD water rights, as Gold Metal trout water. A number of entities, including the Gore Range chapter of TU, have undertaken fishery habitat improvement projects in the Blue River below Dillon Reservoir, and the Cotorado Water Conservation Board holds in-stream flow rights through the RICD reach for 55, 52 and 50 cfs. Though TU believes that flows greater than those protected by the CWCB in-stream flow right could benefit the trout fishery in the Blue River, especially if timed to mimic a natural hydrograph, TU is concerned that Silverthorne's application, if granted as filed, could have an adverse impact on this extremely important resource. Silverthorne claims RICD flows of 100 cfs for the months of May through September (Level One Flows) in addition to flows of 600 cfs for four days over Memorial Day, Independence Day and Labor Day weekends (Level Two Flows). While flows of 600 cfs are appropriate for Memorial Day weekend, flows of 600 cfs over Independence Day or Labor Day weekend may be larger than is healthy for the trout fishery in the Blue River. Such flows are higher than the average historical flows in the Blue River and appear to exceed the amount of water historically available. Additionally, dramatic fluctuations in flow rates can cause significant adverse impacts on river ecology and trout populations. TU is concerned that dramatic increases or, in particular, decreases in flow rates as flows rise up to and drop down from the Level Two Flows would be damaging to the Blue River trout fishery. TU is aware that Silverthorne's RICD water right will hold a junior priority and would not normally be expected to produce water that would not otherwise exist in the stream. The written testimony of Silverthorne's water engineers, however, indicates that, "the requested RICD will help increase the frequency and duration of the flows exceeding this decreed [CWCB] in-stream right during the May through September period." Apparently it is contemplated that Denver Water will voluntarily release water from Dillon Reservoir, as it did during Labor Day weekend 2004, to satisfy Silverthorne's RICD. Again, TU believes that increasing the level of flow protection beyond the CWCB in-stream flow rights would be beneficial, but is concerned that Silverthorne's Level Two Flows during Independence Day and Labor Day weekends could be problematic. Trout Unlimited's concerns regarding the Level Two Flows during July and September are relevant to three of the statutory factors upon which the CWCB must make findings. First, the concern over adverse impacts to the trout fishery is relevant to whether the RICD is claimed for an appropriate reach of stream, particularly in light of the Blue River's demonstrated importance to the state as a trout fishery. Second, similar to an inundation of a CWCB in-stream flow right, dramatic increases or fluctuations in flows that result in damage to the trout fishery cause material injury to the CWCB's in- stream flow rights. Third, adverse environmental impacts are relevant to the maximum utilization analysis under the Colorado Supreme Court's opinion in Alamosa La-Jara Water Users Protection Ass'n v. Gould, 674 P.2d 914, 935 (Colo. 1983) (maximum utilization "can only be achieved with proper regard for all significant factors, including environmental and economic concerns."). III. POSSIBLE WITNESSES Andrew Peternell, counsel for TU, may present testimony concerning TU's interest in Silverthorne's RICD application or concerning any disputed factual or legal issues. Members of TU's Gore Range chapter may present testimony on the same subjects. TU may identify additional rebuttal -_ - - _ - ?_ -- _ - - . -