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B,u,cOMB &: G~EN, P.C. ATTOro.~YS Air LAw Dan Merriman and Mark Uppendahl Telluride and MVMD Concerns for !SF Priorities June 7, 2001 Page 4 e II, Pll.OSPECf CREEK Telluride and MVMD would also like to rorlse one concern specific to Prospect Creek. Wright Water Engineers has conducted hydrolo'gic investigations on Prospect Creek. This research indicates that flows are low in this creek throughout the year. Furthermore, existing senior appropriations result in the dewatering of several stretches of the creek during various periods each year. Therefore, e~tablishment of an instream appropriation for the entirety of Prospect Creek using the R2q:ROSS method is inappropriate. i We are aware that the CWeB has, in the past, appropriated instream flows in streams that experience dewatering due to div~rsions under valid senior appropriations. It is our understanding that this has oCCUITed by segmenting these streams at the decreed diversion point where dewatering occurs. This practic:eessentially removes the dewatered segment from the instream flow requirement, preventing injury to senior appropriators. e If the CWCB seeks an instream appropria~on on Prospect Creek, it will be necessary to segment the creek so that the appropriation is made only for those segments where suffident water exists to support an instream fl9w, . III. CONCLUSION Finally, we would like to remind the Bqard that instream flows have significant sodal and political impacts in communities near the target water body. Instream appropriations tend to acquire a status in4ependent and unrelated to the prior appropriation system. The term "instream flow'( often attains the connotation "minimum flow" in the community is thereafter looked at ~s an inviolable community asset. I ltis our experience that owners of senior tights are often exposedto public contempt if they call against a junior instream flow. Ther~ is also a risk that subordination of senior rights will be made a condition of approvlll in local political and administrative proceedings, The result is that instream f1ow~ attain a de facto senior priority, forcing ~olders oflegally senior rights to choose betwe~ political injury in the community or legal injury to their vested water rights. For this feason, we feel it is imperative that any proposed instream appropriations be set wi~ the physical limits of the native, baseline flows of the target waterway. . Thank you for considering the concerns of both Telluride and the MVMD. Our e clients look forward to working with the CWCIi in the future. Please contact us with allY