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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

It
Revised Opposition to the Prehearing Statement
of the Upper Yampa Water Conservancy District
Page 4 of 6
3. For the CWCB to consider the District's alternative proposal at the hearing would
violate the public review process and other procedural requirements necessary to
any inundation request.
The CWCB may not respond to an inundation request unless and until the request is
subject to public review and meets other mandatory procedural requirements. The ISF Program
Rules state that "[t]he Board shall follow the public review process in Rules I I a.—c. prior to any
Board decision on a request to inundate an ISF right." Rule 7n. This public review process
requires public notice of the requested inundation and consideration of public comment in oral or
written form at a public meeting. The CWCB may also request recommendations from state or
federal agencies, or other persons, as it deems appropriate. To do so would be appropriate in this
case given the necessary participation of other agencies in the permitting of the Morrison Creek
Reservoir. Contrary to the suggestion by the District, there is not sufficient time to conduct
proper public review if the CWCB were to make a contemporaneous determination as to the
Morrison Creek instrearn flow appropriation and the District's Request to Inundate.
When the time is appropriate for the District to submit an inundation request for Morrison
Creek Reservoir, the Proponents suggest that substantial opportunity for public review be
allowed given the high level of interest by the public and other agencies. For example, the ISF
Program Rules require a two meeting public review process for other actions by the CWCB
affecting its instream flow rights, such as an "injury with mitigation" determination. The
Proponents suggest that a similar two meeting process would be appropriate to address the
District's Request to Inundate. This would allow the public and other agencies sufficient
opportunity to review and comment on the proposal. Likewise, the Proponents request that the
CWCB obtain recommendations from the Department of Wildlife and other agencies prior to
making any determination as to the District's Request.
The Proponents are also concerned that if the CWCB were to attempt to determine
whether to appropriate an instream flow in Morrison Creek and respond to the District's Request
to Inundate simultaneously, as the District suggests, this would risk confusing and improperly
commingling the relevant statutory and regulatory criteria. In reviewing a request to inundate,
the CWCB must consider all relevant factors, including but not limited to: (1) the extent of
inundation proposed; (2) the impact of the proposed inundation on the natural envirom
existing prior to the inundation; (3) the degree to which the beds and banks adjacent to the ISF
right subject to the inundation are publicly or privately owned; (4) the economic benefits arising
from the inundation; (5) the benefits to recreation and downstream ISF segments arising from the
inundation; (6) the degree to which the proposed inundation will allow development of
Colorado's allotment of interstate waters as determined by compact or adjudication; and, (7) any
mitigation or compensation offered to offset adverse impacts on the ISF right. Rule 7g. In
contrast, the CWCB's determinations in a contested instream flow appropriation are limited to
the three discrete slghgtoa criteria listed above, in Section 1. § C.R.S. § 37-92-102(3)(c) (2009).
There is no feasible means for a single meeting or hearing to allow consideration of all relevant
factors to an inundation request, and simultaneously limit submitted evidence to that relevant to
an instrearn flow appropriation.