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<br />Colorado Water Conscrvation Board <br />, I <br />Board of Dire~tors <br />July 25, 2003 : <br />Page 2 <br /> <br />J. The deifmition of "subject water right" (paragraph I.b of the current version) refers only to <br />"the iIjstream flow right to be appropriated by [the CWCB as set forth in the Notice to <br />Appropriate]". Although the CWCB's motion to appropriate was expressly subject to the <br />Subor4ination Agreement, the Notice to Appropriate provided to the CWCB on May 20 was <br />not. I10r this reason, water tlsers in the basin cannot safely rely on the definition of the <br />"subjd:t watcr right" in the current draft of the agreement as evidence that the Enforcement <br />Agreement is subject to tJle Sllbordination Agreement. <br /> <br />2. Para.gr~ph 4,c of the current draft of the agreement, suggests that subordination of the <br />instream flow right is prohibited. Paragraph 4.e. provides that: <br /> <br />Excep~ as provided in paragraphs 4. a, and b, above [re: Aspinall operations and <br />floodi~g in Delta], the Board shall not abandon, in whole or in part; subordinate; <br />lease; sell: donate; otherwise dispose of; compromise; subjugate; or encumber the <br />subject water right in any manner whatsoever without the prior written consent of the <br />Nationi'll Park Service. [Emphasis added]. <br /> <br />Ifill fa~tall parties agree that there is an intent to stlbordinate, there is no reason not to draft <br />the enforcement agreement to clearly state that intent. To instead rely (as apparently proposed by <br />the United Stales and the CWCB) only 011 an indirect inference from the definition of"sllbject water <br />right" in the alp'ccment will simply invite future disputes. <br /> <br />The Riyer Distrietrequests that the CWCB reject the current version of the draft Enforcement <br />Agreement ancii provide authority to the CWCB staffand attomeys to execute a revised Enforcement <br />I ' <br />Agreement thijlt clearly and unambiguously protects Gunnison Basin water users by inserting into <br />tJle agreementitlle subordinatiolllanguage set forth in the June 25, 2003, draft oftl,e agreement. <br /> <br /> <br />'#~ <br /> <br />eter C, Fleming <br />General Counsel <br /> <br />Att..'\chrnent <br />co: CRWCJ1l Board Members. w/attachmcnt <br />Eric Ku~n, w/attachment ' <br />Chris Tr:eese, w/allachmcnt <br />Carol A~gol, Esq. , w/attachment <br />John M<iClow, Esq., w/attachment <br />Barney White, Esq., w/altachmcnl <br />Ken Spann, Esq., w/attachment <br />