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Page 2 77CW 1328, the District shall request and obtain approval from the CWCB for such storage pursuant to the provisions of 2 CCR 408 -2, Section 7...." Issues This Brief addresses the following issues: (1) whether additional legal issues concerning inundation could be raised during an ISF hearing; (2) whether the inundation request is contrary to the terms of a stipulation between CWCB and the District in Cases 07CW61 and 07CW72; and (3) whether such request is premature until the District provides adequate information concerning the reservoir and its impacts. Recommendation The Board should not hear the inundation request on Silver Creek in conjunction with the ISF appropriation hearing for Morrison Creek. The Board should follow the terms of the stipulation signed with the District, which provides that the Board should hear and determine the outcome of the inundation request after the extent of the inundation of the CWCB's instream flow right by the District's proposed Reservoir is known with some detail, and the permitting process has begun. Further, the Board should hear the inundation request after the permitting is in process and the mitigation requirements imposed by section 37 -60- 122.2, C.R.S. (2009) are known. Nonetheless, if the Board determines that it should hear the inundation request prior to the permitting process beginning or knowing the mitigation requirements, then the Board should direct Staff to bring the inundation request only after more information is provided about the details of the reservoir and its effects on the ISF. Analysis First, the Board should not hear the inundation request as part of its consideration of the ISF appropriation on Morrison Creek because it would be contrary to the CWCB's own rules and the plain language of section 37 -92- 102(3), C.R.S. (2009). Rule 5j.(3) of the Rules Concerning the Colorado Instream Flow and Natural Lake Level Program provides that the only issues that can be raised during an ISF appropriation hearing are that the natural environment will be preserved to a reasonable degree by the water available for the appropriation to be made; that there is a natural environment that can be preserved to a reasonable degree with the board's water right, if granted; and that such environment can exist without material injury to water rights. Similarly, section 37 -92- 102(3) provides that the Board shall determine at the ISF hearing "that the natural environment will be preserved to a reasonable degree by the water available for the appropriation to be made; that there is a natural environment that can be preserved to a reasonable degree with the board's water right, if granted; and that such environment can exist without material injury to water rights." It would be inappropriate to consider the issues raised in the District's case on Morrison Creek during the CWCB's ISF hearing on Silver Creek. Second, the Board should follow the terms of its stipulation with the District and not hear the inundation request because the District has not provided adequate information to determine the effects of the inundation on the ISF. The District acknowledged at the time of the stipulation and again in its inundation request that it is lacking in basic information concerning the extent of