BOARD00563

• Board Meeting Date: 3/22/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

9. Application of City of Central (Case No. 92CWI68).

On April 2, 2004, the Division 1 Water Court ruled as a rnatter oflaw 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. Specifically, the Water Court
held that an applicant for a plan for augmentation may make new, out-of-priority diversions
under a plan for augmentation including exchange, without agreeing to terms and conditions
sufficient to protect all existing vested water rights from reduced streamflow within the
exchange reach. Both the CWCB and the Office of the State and Division Engineers believe
this to be an incorrect interpretation ofthe law. On May 14, 2004, the Attorney General's
Office filed a Notice of Appeal of this case with the Colorado Supreme Court. 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 supporting the Attorney
General's position, including the Colorado River Water Conservation District, the
Southeastern Colorado Water Conservancy District, the Northern Colorado Water
Conservancy District, Trout Unlirnited, and Excel Energy.

The City of Central's Answer Briefis due March 14,2005. The CWCB's Reply
Brief is due April 8, 2005.

10. RICD Application of Upper Gunnison Water Conservancy District (Case No.
02CW038).

The Supreme Court issued its opinion on March 14,2005, and the following is the
Court's headnotes ofthe 48 page opinion, authored by Justice Rice: "Appellants the
Colorado Water Conservation Board (CWCB or 'the Board') and the State and Division No.
4 Engineers appeal the water court's order and decree granting a recreational inchannel
diversion CRICD) conditional water right to Applicant Upper Gunnison River Water
Conservancy District. The Supreme Court reverses and remands.

"After construing SB 216, the Supreme Court holds that the General Assembly
established a procedure for the adjudication of in stream diversions by local government
entities for recreational uses. Specifically, the CWCB was granted initial, limited factfinding
authority on enumerated factors as applied strictly to an applicant's claimed stream flow and
intended recreation experience; stream flows or recreation experiences not intended by the
applicant cannot be considered. The water court, in contrast, was charged with adjudication
of a RICD application, and must consider the five statutory factors - compact impairment,
stream reach appropriateness, access availability, instream flow rights injury, and maximum
utilization - and treat the CWCB's factual findings on these factors presumptively. Should
any party produce evidence contrary to the CWCB' s findings, the presumption is rebutted,
and the water court must weigh the evidence before it under a preponderance of the
evidence standard.

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"In addition to the five factors as well as all applicable preSB 216 statutory standards .
for adjudication of conditional water rights, the water court must determine whether an

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