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<br />. <br />'. <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />WATER RIGHTS UNIT MATTERS <br /> <br />1. CWCB ISF Application on Gunnison River through the Black Canyon (Case No. <br />03CW265). <br /> <br />Nothing new to report. <br /> <br />2. Application of City of Central (Case No. 92CW168). <br /> <br />On April 2, 2004, the Division 1 Water Court ruled as a matter of law that applicant the <br />City of Central was entitled to operate a new plan for augmentation, including new junior <br />exchanges, without protecting the Colorado Water Conservation Board's existing instream <br />flow. Specifically, the Water Court held that an applicant for a plan for augmentation may <br />make new, out-of-priority diversions under a plan for augmentation including exchange, <br />without agreeing to terms and conditions sufficient to protect all existing vested water rights <br />from reduced streamflow within the exchange reach. Both the CWCB and the Office of the <br />State and Division Engineers believe this to be an incorrect interpretation of the law. On <br />May 14,2004, the Attorney General's OffIce filed a Notice of Appeal of this case with the <br />Colorado Supreme Court. On January 10,2005 the Attorney General's Office filed an <br />Opening Brief on behalf of the CWCB, as well as another brief supporting the'CWCB' s <br />position on behalf of the State and Division Engineers. Numerous other water users have <br />filed amicus briefs supporting the Attorney General's position, including the Colorado River <br />Water Conservation District, the Southeastern Colorado Water Conservancy District, the <br />Northern Colorado Water Conservancy District, Trout Unlimited, and Excel Energy. <br /> <br />The briefing is complete and Oral Argument has been set for June 16, 2005 at 9 am. <br /> <br />3. RICD Apolication of Upper Gunnison Water Conservancy District (Case No. <br />02CW038). <br /> <br />On March 14,2005, the Colorado Supreme Court issued its opinion concerning Gunnison's <br />recreational inchannel diversion ("RICD") water right application. Colorado Water <br />Conservation Board v. Upper Gunnison River Water Conservancy District, 109 P.3d 595 <br />(Colo. 2005) ("Gunnison"). The Court held that both the CWCB and the water court erred. <br />The CWCB exceeded its review authority under Senate Bill 01-216 by considering stream <br />flow amounts and recreation experiences other than those intended by Applicant. The water <br />court erred by failing to give effect to the phrases "minimum stream flow" "for a reasonable <br />recreation experience in and on the water" as required by the statutory definition of a RICD. <br />Accordingly, the Court remanded the case to the water court with instructions to remand to <br />the CWCB for factual findings on whether the applicationnstrictly the stream flows and <br />recreation experience submitted--cornports with the five statutory factors. <br /> <br />On May 17, 2005, the Applicant submitted a Position Statement Concerning Scope and <br />Timing of Remand Proceedings Before the CWCB. In the document, the Applicant asked <br />the Court to remand the case to the CWCB with directions that: (1) the CWCB only consider <br />two of five statutory factors; (2) no new evidentiary hearing be held but rather briefs with <br /> <br />5 <br />