Southeastern Colorado Water Activity Enterprise Minutes May 20 2004

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SECWCD May 20, 2004 10 1 RECORD OF PROCEEDING prior decreed augmentation plans. Southeastern stipulated with the Basalt District to these prior decrees. In this current case, legal counsel sought to confirm that all terms and conditions of the previously decreed plans remained in full force and effect. The proposed decree adds a condition that this decree is subject to all the terms and conditions of prior stipulations with Southeastern. Legal counsel's review of the proposed decree in this case presents no further concerns. Mr. Goodwin moved, seconded by Mr. Stealey, to approve entering into a stipulation to the draft decree. Motion unanimously carried. The Colorado Supreme Court heard oral argument last month in the Trail's End Ranch appeal Mr. Miller reported. Scott Clark from their office and Alex Davis from the Attorney General's Office presented arguments in the case. Mr. Miller joined them at the counsel table and reports that both attorneys did an excellent job in their first appearance before the Supreme Court. Mr. Miller said he expects that the Court likely will rule on this case in June. Mr. Miller said the Colorado Supreme Court will hear oral argument on May 24 on the District's and its allies' motion to "show cause" why the Water Court Order staying the Black Canyon of the Gunnison National Park reserved water rights quantification case was appropriate. Judge Patrick entered the stay pending resolution of the environmental groups' federal court action over the U.S.'s entry into an agreement with the State reducing its claims for reserved water rights. Mr. Miller reported at last month's Board meeting on the oral argument in the U.S. District Court on the United States' and Colorado intervenors' motion to dismiss the environmental groups' federal action relating to the Black Canyon water rights. Since then, the federal court issued its order denying the motion. Judge Brimmer's decision raises substantial concerns regarding whether the United States can successfully defend the agreement signed by the State and the Interior Department, which is intended to be the basis for settling the National Park Service's application to confirm and quantify its reserved water rights for the Black Canyon of the Gunnison National Park In particular, Judge Brimmer focused on the Interior Department's failure to comply with NEPA as a major flaw. The United States is currently compiling the administrative record for the case, which is due in early August. The environmental groups' attorney has suggested that settlement negotiations might be appropriate; it is unclear what such a settlement might address. Mr. Miter reported that in another federal case of interest to the District, the federal court recently ruled that the U,S. Forest Service violated the Federal Land Management Policy Act (FLMPA) when it issued a special -use permit for Long Draw Reservoir in Northern Colorado without requiring a bypass flow. The concern regarding the Forest Service's ability to require bypass flows in Division 2 stymied negotiations to settle the United States reserved rights instream flow case, which was dismissed by the Water Court last year. This decision raises potential concerns for several water activities in the Arkansas River basin, including the Forest Service's consideration of special use permits for the Upper Arkansas District's reservoirs. Mr. Miller said he understands that the United States or other parties may appeal this decision; it has been suggested that some Division 2 water users, including the District, may want to participate in this appeal. The impacts the drought has had on storage on the Colorado River, and the potential that Lake Powell storage will be insufficient to fulfill the Upper Basin's obligations to the Lower Basin without administration of diversions in the Upper Basin, has garnered recent press attention. The Colorado water users coalition, employing Jim Lochhead to assist with representation on Colorado River matters, will meet next Friday to discuss strategies to address this concern; Mr. Broderick and Mr. Miller will attend this coalition meeting. In addition, the State has formed a group of water attorneys, the Colorado River Water Group, to provide advice to the State on Colorado River matters; Lee will participate with this group, as well. The Colorado River Water Group is scheduled to meet in early June. Mr. Broderick said he will be attending the Colorado River Water Users Association Mid -year meeting May 27 -28.