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

Mar 20 00 03:13p

kassen~trout unlimited

3031'440-7933

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Memo to Colorwlo Wottr Conservation Board
Man:h 20, 2000
Pase two

Unlike other appropriators, the Board does oot have the authority not to fully enforce its
decreed water rights (p. 1259);

- The Board's authorizing statute (Section 37-92-102, C.R.S.) does not give the Board the
authority to alter or change decrees of the water court (p. 1260); and

_ Decrees for instream flow rights must be given full force and effect by the Board; the
Board Iw a duty to implement its decrees, unless and until they are modified by the water
court (pp, 1259, 1261).

The Court's statements make clear that not only does the Board lack authority to modify its
decrees without court approval, the Board also must fully enforce the amounts decreed:

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Once a judicial determination is made with regard to the actual
amount of what 'minimum strealn flow' is necessary to protect the
environment, the Conservation Board is obligated to abide by that
judiciAl determination and thereby to fulfill its duty to the people of
this state.

ld. at 1259-60. The Court sated that a water court decree is "a lawful order of the water
court, [and} must be given full force and effect by its terms until modified by the water
court." ld. at 1259.

These fiIlilings leave no room for the Board to enforce less than the full amounts decreed
for instream flows.

Following the Snowmass case, the legislature enacted Senate Bill 64 (Section 37-92-102(4),
C.R.S.), which sets forth procedures for modifying an instream flow decree. The statute
allows the Board's decrees to be modified only after a hearing by the Board and approval by
the water court. This process is described in the Board's Rule 10, However, Senate Bi1164
does not grant any authority to the Board to accept injury to its instream flow rights under an
injury with mitigation process.

The Board adopted its Injury with Mitigation rule before the Snowmass case and Senate Bill
64. The case indicates that the rule is not valid, and SB 64 does not authorize injury with
mitigation. Therefore, it is the position of Tmut Unlimited that the Board does not have the
legal discretion to protect a flow less than the amount decreed under its Injury with Mitigation
rule.

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7Tout Unlimited: America's Leading Coldwater Fisheries OJnservatlon Organization
Wlllltem Water Project* 1966 13th Street, Suite lUiO, Boulder, CO 80302
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