BOARD00511

• Board Meeting Date: 1/25/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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in early November. After we filed our opening brief on November 22, the United States then
moved to dismiss both our appeal and TU's cross-appeal, arguing that the decision below was
not a final judgment. We opposed the motion, and are awaiting a decision. The Board may
wish to discuss this further in executive session.

8. Green Mountain ReservoirlHeeuev landslide case.

On August 7, 2003, the Colorado River Water Conservation District and several other west-
slope entities filed a petition against the Bureau of Reclamation in U.S. District Court for
Colorado to enforce the provisions of the Blue River Decree. The west slope petitioners are
seeking changes of Bureau of Reclamation policy concerning the interrelationships of the
replacement pool and power pool in Green Mountain Reservoir. The Division of Water
Resources has intervened in this litigation. The Court ordered completion of discovery by the
end of February 2005. The United States has produced an administrative record over 42,000
pages in length and has filed motions to limit judicial review to that record. The Division of
Water Resources has opposed those motions. Meanwhile, all parties have begun mediation using
Chris Moore of CDR & Associates.

Green Mountain Reservoir administration issues. The drought has raised issues about how
the State Engineer administers the fill of Green Mountain Reservoir. The State Engineer adopted
an interim policy that compromised the positions of the east and west slopes. A committee of
interested parties was formed to work out an acceptable agreement on administration. The
parties last met on November 8, 2004. The U.S. Bureau of Reclamation agreed to provide a draft
operating plan for Green Mountain Reservoir by December 3rd The USBOR has now stated
they will provide the draft by January 12, 2005. Previously comments on this plan were due
December 31 st, with a follow-up meeting January 20th. The Division Engineer asked that parties
still provide comments before the January 20th meeting. The meeting participants expressed an
interest in reaching a comprehensive and binding resolution of Blue River Decree operations.
They have not decided on a format or legal vehicle for achieving this goal.

9. Application of City of Central (Case No. 92CW168).

On April 2, 2004, the Division 1 Water Court ruled as a matter of law that applicant the
City of Central was entitled to operate a new plan for augmentation without protecting the
Colorado Water Conservation Board's existing instream flow right from injury caused by
resultant reduced streamflow. Specifically, the Water Court held that an applicant for a plan for
augmentation may make new, out-of-priority diversions by exchange under a plan for
augmentation, without operating the new junior exchange under a new junior priority date, or
agreeing to terms and conditions sufficient to protect all existing vested water rights from
changed stream conditions. Both the CWCB and the Office ofthe State and Division Engineers
believe this to be an incorrect interpretation of the law. The Attorney General's Office filed a
Notice of Appeal of this case with the Colorado Supreme Court on behalf of the CWCB on May
14,2004. On January 10,2005 the Attorney General's Office filed an Opening Brief on behalf
of the CWCB, as well as another brief supporting the CWCB's position on behalf of the State
and Division Engineers. Numerous other water users have filed amicus briefs in support of the
CWCB and the Engineers, including the Colorado River Water Conservation District, the
Southeastern Colorado Water Conservancy District, the Northern Colorado Water Conservancy
District, Trout Unlimited, and Excel Energy.

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