Annual Litigation Fund Report 2010

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JOHN W.SUTHERS Attorney General CYNTHIA H. COFFMAN Chief Deputy Attorney General DANIEL D. DOMENICO Solicitor General STATE OF COLORADO DEPARTMENT OF LAW OFFICE OF THE ATTORNEY GENERAL STATE SERVICES BUILDING 1525 Sherman Street - 7th Floor Denver Colorado 80203 Phone (303) 860 -4500 January 27, 2009 Dear Board Members: Request for Expenditure from Litigation Fund for Republican River Compact Litigation By this letter, I request the expenditure of $110,000 over the current and next fiscal years (FY09 and FYI 0) from the Water Conservation Board Litigation Fund (Board) pursuant to section 37- 60- 121(2.5)(a)(IIn, C.R.S. That section authorizes the Board to expend money from the Litigation Fund at the request of the Attorney General for the costs to defend and protect Colorado's allocations of water in interstate streams and rivers. 1 believe this expenditure is necessary to adequately defend, in negotiations and litigation, Colorado's interests in the Republican River. The recent multi -year drought and increasing interstate and intrastate demands on the Republican River have had a dramatic effect on irrigation within the basin. In 2003, a settlement decree was entered into to resolve the interstate litigation on the Republican River, Kansas v. Nebraska and Colorado, No. 126 Original. As a result, Colorado has retired thousands of acres of irrigated land and taken additional actions such as the partial draining of Bonny Reservoir. Also, Colorado is developing enforcement rules and exploring additional actions that we will need to undertake to comply with the settlement decree. Recently, the Kansas Attorney General indicated that the States of Nebraska and Colorado are not doing enough to comport with the settlement decree, and that Kansas intends to initiate litigation against those States to enforce the decree. The State of Colorado must be prepared to curtail its uses, seek to augment stream flows and also defend the State's interest in the litigation that is looming. We currently involved in non - binding arbitration with Kansas and Nebraska on various issues, some of which may adversely affect Colorado's ability to comply with the Compact. Further, we anticipate additional non - binding arbitration regarding Colorado's attempts to build an augmentation pipeline to the North Fork of the Republican River to assist in Compact compliance. Non - binding arbitration is required before any state may file an original action with the United States Supreme Court. We also anticipate claims against Colorado that we have consumed more water in the Republican River basin than allowed by the Compact. Similar claims have been made against Nebraska. Additionally Nebraska will