BOARD00311

• Board Meeting Date: 11/16/2004
• Description: WSP Section and AGO - Request to Obtain Authorization to Expend Funds from the Litigation Fund to Defend and Protect Colorado's Allocation of Water from the Colorado River
• Board Meetings - Doc Type: Memo

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November 16, 2004
Page 2

Finally, in order to defend Colorado's interests successfully, the attorney involved needs a
comprehensive knowledge of both Colorado water law and the specifics of water use and development
within the South Platte Basin, The only attorneys in my office whose expertise in these matters
approaches Mr. Sims are already fully engaged in defending Colorado's interests in other matters, such
as Colorado River Compact interpretation, or Rio Grande well use rules, In my judgment, the people of
Colorado would be best served by retaining Mr. Sims to continue to represent Colorado's interests for
the remainder of this fiscal year and for up to six months of the next fiscal year ("FY06"),
Commissioner Ament and Director Russell George have specifically made this request to me as well.

Mr. Sims has prepared a budget for the work required during that time frame, Mr. Sims
estimates, and I agree, that he should spend approximately 30 hours per month for the next thirteen
months to attend one or two Governance Committee meetings per month (usually 2-day meetings); to
prepare for and perform follow-up work related to each meeting; and to attend the next two Water
Management Committee meetings, including preparation for those meetings, Mr. Sims will bill his time
at a rate not to exceed $180 per hour, the rate his firm charges other governmental clients,

In addition, and at the request of the Division of Wildlife, Mr. Sims is negotiating a resolution of
a pending water court proceeding involving the recharge project at the Tamarack State Wildlife Area, If
successful, that settlement will form an important part of Colorado's implementation of its obligations
under the Three States Agreement. Because Mr, Sims has made substantial progress toward a resolution
of this proceeding and expects to conclude his negotiations within three or four months, I likewise
request authorization to expend additional funds for this purpose up to a total expenditure of up to
$60,000, The Department of Law has committed up to $20,000 from its budget in FY05 for this purpose;
that money is available partly from vacancy savings and partly from the savings that will be realized by
hiring a new lawyer at a lower salary, (No candidate with experience comparable to Mr. Sims applied
for the position,) The requested expenditure from the Board's Litigation Fund would cover the
remainder up to $40,000,

These tasks are essential to concluding the important Three States' negotiations, culminating in a
Record of Decision that I expect will be issued in September or October of2005, This work is
necessary to defend Colorado's rights and interests with respect to the South Platte Compact, to
complete the Tamarack case, and to avoid proceeding to litigation to defend Colorado against water
demands for endangered species, I therefore request and recommend that the CWCB authorize the
expenditure up to $40,000 from the Litigation Fund to fund these activities through the first half of
FY06, I further recommend that the Board specifically authorize the CWCB Director, in consultation
with my staff and Commissioner Ament as well as the DNR Executive Director, to allocate these funds
to the activities to be performed by Mr. Sims as necessary, based on actually incurred costs and legal
priorities,

Thank you for your consideration,

Sincerely,

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KEN SALAZAR
Attorney General