BOARD00268

• Board Meeting Date: 5/16/2006
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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WATER RIGHTS UNIT MATTERS

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1. CWCB ISF Application on Gunnison River throul!:h the Black Canyon (Case No.
03CW265).

This application has been stayed pending the resolution of federal litigation.

2. Application ofCitv of Central (Case No. 92CW168).

On November 28, 2005, in Colorado Water Conservation Board v. City of Central,
125 P.3d 424, 441 (Colo. 2005) the Colorado Supreme Court unanimously holding that the
City of Central ("Central") must include in a proposed augmentation plan terms and
conditions to protect the CWCB's 1987 instream flow right against Central's new out-of-
priority diversions. The Supreme Court remanded the matter to the Water Court to consider
the question as to what terms and conditions are necessary to protect the CWCB's right. In
so doing, the Supreme Court suggested changes to Central's decree that would provide such
protection.

On January 13,2006, the Water Court entered an Order directing Central to file a
proposed decree consistent with the Supreme Court's November 28, 2005 opinion. On
February 2, 2006, Central filed its Response to this Court's January 13,2006 Order. In its
Response, Central ignored the clear direction provided by the Supreme Court in its decision
in Colorado Water Conservation Board v. City of Central. Rather than modifying its decree
to protect the CWCB's instream flow right, Central asserted that "no revisions to the decree
are necessary." The CWCB responded by reminding the Water Court that Central had, in
fact, lost the City of Central appeal. The CWCB thus submitted its own proposed decree
consistent with the Supreme Court's decision. On March I, 2006, this Court ordered Central
to show cause why the court should not enter a proposed decree submitted by the CWCB.

Central filed a response to the Court's March 1,2006 Order attempting to justifY its
refusal to accept the Supreme Court's suggestions. In brief, Central argued that it should be
entitled to make new out-of-priority diversions under its augmentation plan, without
protecting the CWCB's instream flow right, based on the "factual" assertion that it had made
out of priority diversions in the past. The CWCB responded that any such out-of-priority
diversions would have been illegal, and that Central was not entitled to make new out-of-
priority diversions under a new plan for augmentation based upon past illegal diversions.

The issue as to whether Central must revised its decree to be consistent with the
Supreme Court's opinion in Colorado Water Conservation Board v. City of Central is now
awaiting ruling by the Water Court. .

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