BOARD00150

• Board Meeting Date: 3/20/2000
• Description: ISF Section - Proposal for Injury with Mitigation - Case No. 3-99CW034, Nearburg
• Board Meetings - Doc Type: Memo

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Mar 20 00 03:13p

kassen@trout unlimited

303,1440-7933

p.2

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MEMORANDUM

TO:

Colorado Water Conservation Board members
Dan Merriman
Linda Bassi, Esq.

FROM:
DATE:
SUBJECT:

Kelly Custer, Esq., Trout Unlimited Western Water Project
March 20, 2000
Injury with Mitigation, Agenda Items 16 and 17, March 20-21, 2000

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SummAry: The Staff briefing memo to the Board for the Nearburg Injury with Mitigation
proposal (agenda item 16) raises the issue of whether or not the Board can legally protect a
flow less than the decreed instream flow right. The Board's rule governing injury with
mitigation was passed before the Supreme Court decision in the Snowmass case and the
enactment of Senate Bill 64, which describe the limits on the Board's authority to enforce less
than the full decreed amounts of instream flow rights. This memo sets forth Trout Unlimited's
evaluation of this issue and concludes that the Board's current injury with mitigation rule is not
in accordance with the Board's governing statutes.

Question Presented: Does the Board have the legal discretion to protect less than the full
decreed instream flow right under its Injury with Mitigation Rule?

Conclusion: The Board's procedure under its Injury with Mitigation rule is not supported by
statute and is contrary to the law as stated by the Supreme Court in the Snowmass case. The
Board must fully enforce and implement its instream flow decrees, unless it has gone through
the procedure for modification in Senate Bill 64, including ultimate approval by the water
court.

Discussion: The Board's authority to protect less than the full amount decreed of an instream
flow right was examined by the Supreme Court in the Snowmass case in 1996. Aspen
Wilderness WorksJwp v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo, 1996).
The cont~t of the case was the modification of an instream flow right, that is, a decision by
the Board to relinquish a portion of its right on SnoWIIlllllS Creek. The Court held that such a
decision was beyond the Board's authority, and that an order of the water court is nece"Ary to
modify an instream flow decree. Jd. at 1261.

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Although the facts of the case involved a modification rather than injury with mitigation,
several of the Court's rulings apply to the Board' s authority as a whole and therefore apply to
the injury with mitigation process. Three key findings of the Court are: