BOARD00966

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

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Similarly, because Colorado water law allows municipalities to make absolute water rights that
they may not use for many years into the future, there are absolute rights tabulated throughout
Colorado that are not used and thus do not reduce stream flows. The Board's policy statement,
quoted above, recognizes these instream realities. The proposed reductions in appropriations in
the Fraser basin run directly counter to this policy. Choosing to ignore Board policy on an ad
hoc case-by-case basis simply to satisfy a recalcitrant objector seriously hurts the credibility of
the Board's instream flow program.

The proposed changes also run counter to the Colorado Supreme Court's interpretation of how to
determine water availability. In In the Matter of Board of County Commissioners (the Arapahoe
County case), the Court stated both that, "Absolute water right decrees should be considered to
the extent of historical diversions, not to the maximum amount for the decreed purpose" and that,
"Conditional water rights under which diversions have not been made or none are being made
should not be considered in determining water availability." 891 P.2d 952,969 & 971 (Colo.
1995). Again, both of these admonitions run directly counter to what the staff is now proposing
that the Board ratify and the staff memos cite no alternative rationale for the reductions they
propose.

There is also no potential for the Board'sjunior appropriations to injure Denver's senior
conditional and unexercised absolute rights. If Denver ever perfects or uses these rights, Denver
will undoubtedly call out the Board's rights in a shortage period. On the other hand, until these
rights are perfected or used, the Board's instream flow appropriation can provide valuable
protection to the natural environment on these streams. Moreover, to the extent that the Board
appropriates the amount necessary to protect the natural environment to a reasonable degree, the
streams will be better protected against future additional development. So long as water
continues to be available, the Board can and should protect these streams as contemplated under
its policy statement and the basic principles of Colorado water law.

On a related topic, TU also notes that the concerns we have raised with regard to these proposed
reductions to new Board appropriations further highlight the importance of maintaining the
Instream Flow Subcommittee and using that group to develop policy recommendations for the
Board. The Subcommittee has identified many issues where there is a need for Board action and
should move forward on developing specific proposals to address those needs. However, new
issues - such as the manner in which Board staff conduct their water availability analyses, and
when it might be appropriate to diverge from their standard approach - will continue to emerge.
The Board should maintain an ongoing process for identifying and addressing these instream
flow program issues.

We thank you for your consideration.