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<br />.. <br /> <br />Colorado Water Conservation Board <br />August 26, 1998 <br />Page 2 <br /> <br />e <br /> <br />degree with the board's water right, if granted; and that such <br />environment can exist without material injury to water rights. <br /> <br />C.R.S. S 37-92-102(3)(c). Accordingly, the statute requires certain threshold determinations by <br />the Board in order to file for a water right. In making those determinations, the Board decides <br />whether an instream flow water right is needed, and if so, the amount of water it will seek to <br />appropriate. Thus, until those determinations are made, the Board cannot have the necessary <br />intent to appropriate because it cannot know whether, and the extent to which, it will seek an <br />instream flow water right. For example, if the Board determines that a natural environment does <br />not exist or would not be preserved to a reasonable degree, then there is no intent by the Board to <br />-appropriate. The Board cannot know whether such intent exists until it makes those <br />determinations. <br /> <br />It is important to note the distinction between the CWCB staff and the Board. Although <br />the staffmay conduct investigations into whether it believes the requirements of Section 37-92- <br />102(3)( c) are met, and may recommend certain findings to the Board, it is the Board that is <br />ultimately required by law to determine whether the prerequisites are satisfied for an instream <br />flow right. Thus, although the staff may make recommendations to the Board, the Board cannot <br />have the intent to carry out those recommendations until it reviews the recommendations and ... <br />makes the necessary statutory findings. In other words, it is the Board's intent that matters, not ., <br />the intent of its staff, because the Board is the one with the exclusive authority to appropriate. <br />instream flows. <br /> <br />The final notice published by the CWCB is consistent with the Board's legal <br />requirements as discussed above. Specifically, the notice states that "[s]taffis recommending the <br />CWCB determine" the necessary elements for an instream flow right at the upcoming meeting. <br />Thus, the notice necessarily presumes the Board has not yet made the requisite determinations for <br />an instream flow filing and that, at present, there only exists the staff's recommendations <br />regarding such determinations. If that were not the case, then the public hearing would be a <br />fiction and violate the CWCB's procedures. <br /> <br />Prior to 1997, the CWCB's regulations stated that the earliest appropriation date the <br />CWCB may claim is the "date the Board makes [the statutory] determinations." 2 CCR 408-2, S <br />5.23. This regulation is consistent with the statutory language and, since it was adopted soon <br />after the statute was passed, demonstrates a contemporaneous understanding of the statute by the <br />CWCB. More recently, Section 5.23 was modified to allow the CWCB to claim an appropriation <br />date as early as the date of notice of intent to appropriate. However, as indicated above, the fmal <br />notice in this case only indicates when the Board intends to consider the staff's <br />recommendations. The lawful intent to appropriate cannot exist until the Board actually makes <br />the determinations required by statute, because prior to those determinations it cannot know <br />whether it will seek to appropriate an instream flow, or the amount of such appropriation. e <br />