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

. Glenn E. Porzak
Michael F. Browning
Richard A. Johnson
George V. Berg. Jr.
Steven J. Bushong
Michael J. Repucci

Porzak Browning & Johnson LLP

ATTORNEYS .AT .LAW

929 Pearl Street, Suite 300 . Boulder, CO 80302
303 443-6800 . Fax [phone]

August 26, 1998

Wm. Ike Krasniewicz
Julie Schoenfeld
Kathleen M. Morgan

Colorado Water Conservation Board
1313 Sherman Street
Denver, CO 80203

RECEIVED
AUG 2 7 1998

Of Counsel:
Neil C. King, P.c.

Colorado Water
Conservation ~'.:rd

Re: Comments on the Proposed Instream Flow Right for Tennessee Creek

Dear CWCB Staff:

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The following comments are directed towards the proposed instream flow right for
Tennessee Creek as published in the notice dated Iuly 28, 1998. Based upon that notice, the
CWCB will be considering the staffs recommendations regarding Tenessee Creek at its meeting
on September 21, 1998. The specific concern raised by The Eagle Sky Foundation, Inc. in this
letter pertains to the appropriation date that the CWCB will claim if it elects to file for an
instream flow water right on Tenessee Creek. It is our opinion that the earliest appropriation date
that can lawfully be claimed by the CWCB is the date it actually makes the requisite statutory
fmdings and votes to file for the instream flow water right. in this case, the earliest that can
occur is September 21, 1998.

The appropriation date claimed for a water right requires "on the part of [the] claimant
both an intention to appropriate the particular water and an open physical demonstration of that
intention." Bunger v. UncompahlITe Val1ev Water Users Ass'n. 557 P.2d 389, 393 (Colo. 1976).
These intent and overt act requirements constitute the "first step" towards an appropriation. ~
u" In re Upper Gunnison River Water Conservancy Dist., 838 P.2d 840, 848-49 (Colo. 1992).
As discussed in more detail below, Eagle Sky Foundation believes that until the Board makes the
statutory findings set forth in C.R.S. ~ 37-92-1 02(3)( c), the CWCB does not have the legal intent
to appropriate because it does not know with certainty whether it will seek an instream flow
water right or the specific features of that water right.

1. The CWCS Cannot have the Intent to ApJlropriate Until it Makes the Statutory
Determinations Required for an Instream Flow Filing.

The CWCB is required to make the fol1owing threshold determinations prior to filing for
a water right:

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Before initiating a water rights filing, the board shall determine
that the natural environment wil1 be preserved to a reasonable
degree by the water available for the appropriation to be made; that
there is a natural environment that can be preserved to a reasonable