BOARD00175

• Board Meeting Date: 9/21/1998
• Description: ISF Section - New Appropriations - Notice to Appropriate Instream Flow Water Rights in Water Division 2
• Board Meetings - Doc Type: Memo

Mr. Mark Uppendahl
August 20, 1998
Page 2

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2.

If the Board elects to proceed with an appropriation and water coun filing, then it should
expressly limit the ISF to assure compliance with Rules 5.51 to 5.53. Rule 5.53 requires the
Board to determine that the environment to be preserved by the ISF can exist without material
injury to water rights. We did not find any such determination in the Board's files. The fact that
the ISF will be a junior right does not, as the Board is aware, guarantee that its enforcement will
not limit the use of existing and future Texas Creek water rights. There are numerous wells, and
other water rights, in the Texas Creek drainage which may be subject to regulation. Though
many of these water rights have only a very small effect on the flow of Texas Creek, their
continued use may require water users to develop augmentation plans to replace long-standing
depletions. Available augmentation supplies are, however, extremely limited in the Texas Creek
drainage. Compliance with the Division 2 rules will require initiation of exchanges of water from
the mainstem of the Arkansas, the development of new water supplies or the conversion of
existing water supplies in the valley for use for augmentation purposes. The maintenance of the
proposed ISF on Texas Creek could effectively block the operation of such exchanges, limit the
initiation of new augmentation water supplies in the valley or restrict water users' ability to
convert existing water rights to augmentation purposes, resulting in the material limitation or
discontinuation of use of those rights. Under Rule 5.53, this is a matter that the Board must
cousider, and any appropriation of, and water coun application for, the Texas Creek ISF must
be expressly limited so that it will not adversely effect for augmentation and replacement uses:
(1) the ability to exchange water up Texas Creek and its tributaries from the Arkansas, (2) the
initiation of new. water rights on Texas Creek and its tnbutaries and (3) the adaptation, by change
of water rights or otherwise, of existing water rights on Texas Creek and its tributaries. To the
extent the ISF diminishes augmentation possibilities for long-standing depletions, then we believe
that the Board must also find that water is not available for the ISF under Rule 5.51.

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In this regard, we have not been able to locate records for any existing gage on Texas Creek.
The U.S.G.S. has no published records for Texas Creek, and the Colorado Division of Water
Resources informs us that it is not aware of any gage on Texas Creek. The Board's files on this
ISF contain gage records for the mouth of Texas Creek for 1971 to 1976 only, which are not
necessarily representative of long term or current conditions. Given the number and character
of existing water uses on Texas Creek and its tributaries, which are reflected in the available
streamflow data, the Board will need to obtain and consider long-term data on Texas Creek
streamflows, in combination with other information on applicable regulatory practices, historic
and future diversions and other matters, to make the determinations required by Rules 5.51 and
5.53 for this ISF. Under those rules, the Board should not act on the recommendation until it
has sufficient information to determine whether water is available and whether the ISF can be
initiated without injury to water rights in the Texas Creek drainage.

Me. Seegers requests that these comments be presented to the Board as provided in the July 28 notice.
If the Board appropriates the Texas Creek ISF. particularly without express consideration being given to
the matters raised in this letter, we will recommend that Mr. Seegers oppose the application.

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