BOARD00966

• Board Meeting Date: 3/29/1999
• Description: ISF Section - Amendments to ISF appropriations
• Board Meetings - Doc Type: Memo

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Melinda Kassen \
Colorado Director 13 1)./'"
Western Water Project
[e-mail]

March 26, 1999

TO: CWCB Board members and staff
FROM: Melinda Kassen, Dave Nickum & KelIy Custer
RE: Supplemental Comments

By memorandum dated March 24, 1999, Trout Unlimited submitted extensive comments
regarding many items of interest on the CWCB' s March meeting agenda. Because we were not
able to see the staff memos on many agenda items until this week, or investigate the facts behind
some of the agenda items, we did not become aware of the situation surrounding Agenda Item
13, Amendments to ISF Appropriations, until after we had mailed the bulk of our comments. To
provide a complete record of our concerns regarding issues for the Board's consideration, we
therefore submit the following additional comments.

.

TU is alarmed over six of the proposed amendments to instream flow appropriations in the
Fraser River Basin. Since the proposed amendment to the filing in Case No. 5-90CW302 (Fraser
River) does not alter the quantity of flow appropriated but merely specifies a USGS gage as the
point of administration, TU is not raising any concerns regarding this proposal. The remaining
amendments (5-90CW310-12 and 315-17), however, reduce the instream flow appropriations on
the basis of new water availability analyses that we believe contravene Board policy and
established principles of Colorado water law.

From informal conversations with CWCB staff, it is TU's understanding that, prior to the initial
filings, the staff analyzed water availability for these six reaches by looking at hydrologic data
and concluding that water was in fact physically available to support the new filings. TU further
understands that the hydrologic data have remained basically the same over the last nine years.
While there has been no change in actual instream water availability, one of the objectors, the
Denver Water Board, made the staff aware of its senior conditional and absolute, but not fully
exercised, rights on the reaches in question. It is, then, solely as a result of the staff having been
made aware of potential, but currently unexercised, water rights, that the staff has amended its
water availability analyses and is asking the Board to reduce its appropriations. TU urges the
Board to reject the staff's recommendation on the ground that the new water availability analyses
are inappropriate, both as a matter oflaw and policy.

Board policy on water availability indicates that, "The Board considers actual physical
availability of water rather than whether water in a stream is unappropriated water." Page 4,
Statement of Basis and Purpose concerning the Colorado Instream Flow and Natural Lake Level
Program (1994). TU agrees with the Board's policy. Given the extent of un perfected
conditional rights throughout the state, basing a water availability analysis on the presence of
conditional rights rather than on the actual physical availability of water would unduly hamper
. the CWCB's instream flow program from reasonably protecting the natural environment.

Trout Unlimited: America's leading Coldwater FISheries Conservation Organi:atWn
Colorado Office' 1900 13th Street, Suite 101, Boulder, CO 80302' Phone [phone] . Fax [phone]