BOARD00974

• Board Meeting Date: 11/15/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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WATER RIGHTS UNIT MATTERS

I. CWCB ISF Application on Gunnison River throul!h the Black Canvon (Case No.
03CW26S).

This application has been stayed pending the resolution of federal litigation.

2. Application of City of Central (Case No. 9ZCW168).

As previously reported, on April 2, 2004, the ~ivision I Water Court ruled as a matter oflaw
that applicant the City of Central was entitled to operate a new plan for augmentation, including
new junior exchanges, 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 ofthe State
and ~ivision Engineers believe this to be an incorrect interpretation ofthe law.

John Cyran and Alex Davis argued the issues before the Colorado Supreme Court on June
16, 2005. Although the questions are not necessarily indicative of the way the Court is leaning,
many of the questions seemed favorable to our position. The Case is now awaiting decision by
the Court. Nothing new to report.

3. RICD Application of Upper Gunnison Water Conservancv District (Case No.
02CW038).

On March 14,2005, the Colorado Supreme Court issued its opinion concerning Gunnison's
recreational inchannel diversion ("RICO") water right application. Colorado Water
Conservation Board v. Upper Gunnison River Water Conservancy District, 109 P.3d 595 (Colo.
2005) ("Gunnison"). The Court held that both the CWCB and the water court erred. The
CWCB exceeded its review authority under Senate Bill 01-216 by considering stream flow
amounts and recreation experiences other than those intended by Applicant. The water court
erred by failing to give effect to the phrases "minimum stream flow" "for a reasonable recreation
experience in and on the water" as required by the statutory definition of a RICO. Accordingly,
the Court remanded the case to the water court with instructions to remand to the CWCB for
factual findings on whether the application--strictly the stream flows and recreation experience
submitted--comports with the five statutory factors.

On May 17, 2005, the Applicant submitted a Position Statement Concerning Scope and
Timing of Remand Proceedings Before the CWCB. In the document, the Applicant asked the
Court to remand the case to the CWCB with directions that: (I) the CWCB only consider two of
five statutory factors; (2) no new evidentiary hearing be held but rather briefs with cites to the
old hearing record be submitted; and (3) the Findings and Recommendations be issued on July
18,2005 (the date another RICO hearing is being held). The State argued against this request

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