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• Board Meeting Date: 7/21/2010
• Description: Stream & Lake Protection Section - Case Nos. 6-07CW061 and 6-07CW072: Applications of Upper Yampa Water Conservancy District
• Board Meetings - Doc Type: Memo

Revised Opposition to the Prehearing Statement
of the Upper Yampa Water Conservancy District
Page 2 of 6
right ("Subject Reach"). Silver Creek is a tributary of Morrison Creek. The confluence of Silver
Creek and Morrison Creek bisects the Subject Reach. The CWCB holds an instrearn flow right
on Silver Creek, decreed in Case No. 77CW1328. That right is senior to the District's Morrison
Creek Reservoir storage right, decreed in Case No. 07CW61. The relationship between the
District's storage right and the existing Silver Creek instrearn flow right is not relevant to a
determination by the CWCB whether to appropriate a new minimum instream flow on Morrison
Creek. Therefore, the District's Request to Inundate may not be raised or considered at the
hearing.
2. In addition to being irrelevant to the issues that may be raised at the ISF hearing,
the District's Request to Inundate is premature.
A. The District's Request to Inundate is premature at this pre-permitting stage of the
project and the CWCB may defer consideration of the request until the completion
ofpermitting by other agencies.
The ISF Program Rules explicitly allow the CWCB to defer decisions regarding requests
to inundate until the applicant has obtained all other necessary permits. The Rules state, "[w]hen
it appears that other governmental agencies may impose terms and conditions upon the issuance
of a permit to construct a facility which will cause an inundation, the Board may defer
consideration of the request to inundate until all other governmental bodies have fmalized the
permit or approval conditions." Rule 7j. The District admits in its Prehearing Statement that it
"will be required to obtain a number of permits in order to develop these conditional water
rights," which permits "will likely include terms and conditions necessary to protect minimum
stream flows." District's Prehearing Statement, pp. 2-3. Given the likelihood that other agencies
such as the Army Corps of Engineers will impose terms and conditions on construction and
operation of the Reservoir, the CWCB should defer consideration of the District's request until
those permits have been issued. At that time, the CWCB, the public, and other commenting
agencies would have the relevant detailed information necessary to ffilly consider and determine
whether to grant the request, deny the request, or grant with additional conditions.
B. The District's Request to Inundate is inconsistent with the Stipulation and Decree
entered in Case No. 07CW61 which mandates that the District shall submit
inundation requestsfor the Morrison Creek Reservoir during the perm
process.
The stipulation between the District and the CWCB; entered in Case No. 07CW61 and the
resulting decree in that Case, include a condition which states: "During the permitting process
and prior to commencing construction of the Morrison Creek Reservoir that would inundate any
existing CWCB instrearn flow right on Silver Creek decreed in Case No. 77CW1328, the District
shall request and obtain approval from the CWCB for such storage pursuant to the provisions of
2 CCR 408-2, Section 7. . ." Proponents' Prehearing Statement, Exhibits I and L. The District
admitted during the prehearing conference on July 16, 2010 that it has yet to submit any permit
applications for the proposed Morrison Creek Reservoir. Therefore, the Request to Inundate
submitted by the District is premature.