BOARD00974

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

orally and will submit written argument by May 31, 2005. The State's position is that the
Supreme Court specifically stated that it remanded the case "to the water court with instructions
to remand to the CWCB for factual findings on whether the application... comports with the
five statutory factors." Id., at 603. Thus, the Water Court was told to remand the case to the
CWCB with instructions that the CWCB was to consider five statutory factors, not two. Further,
ifthe Water Court were to mandate procedures for the CWCB to follow during its statutory
hearing, the Water Court would be violating Article III of the Colorado Constitution, requiring a
separation of powers.

Staff's prehearing statements are due on January 6,2006 and the CWCB Findings to the
Water Court are due February 3, 2006. Counsel, on behalf of Staff has made a settlement offer
and received a counteroffer. The Board may discuss this during the Board meeting.

4. Case No. 04CW120. Application of Natural Resources EnerllV Companv lNECO)

On August 3, 2005, in its Order on Opposers' Motion for Summary Judgment, the Division 4
Water Court denied Natural Energy Resources Company (NECO) application for reasonable
diligence, and cancelled and dismissed NECO's conditional storage water right for the Union
Park Reservoir. Several objectors had joined in filing the Motion for Summary Judgment,
challenging the continuing feasibility of the Union Park Reservoir Project and claiming that
NECO cannot meet the can and will test. (The CWCB did not take a position on the motion).
The Court relied upon Municioal Subdistrict Northern Colorado Water Conservancv District v.
OXy, USA. Inc. in applying the can and will test in this diligence proceeding, and found that
Judge Brown's previous rulings that Arapahoe County could not rely on Taylor Park Reservoir
as a forebay and afterbay for pumping and power generation are final and apply here as the law
ofthe case.

On September 14,2005, NECO filed a Notice of Appeal of the Water Court's decision
with the Colorado Supreme Court. The Notice proposes to raise the following issue on appeal:
"Whether the Trial Court erred in granting Opposer's Motion for Summary Judgment,
dismissing the Application for Finding of Reasonable Diligence, and canceling and dismissing
the conditional water right." The Board may wish to discuss this item in executive session.

5. Concernine the Water Riehts of the Citv of Steamboat Sprines. Case No. 03CW86.

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Judge Michael O'Hara granted the City of Steamboat Springs application for a
recreational in-channel diversion (RICD) water right for the City's Boating Park last Friday.
Ruling from the bench at the end ofa 7-day trial, the Water Judge found that the presumptive
findings of fact of the Colorado Water Conservation Board that the Boating Park was not located
in an appropriate reach ofthe river and that the claimed flows were wasteful had been rebutted
by the contrary evidence presented by the City. Thus, the Court rejected the CWCB's
recommendation that the Water Court deny the application. The Court found that, based on the
preponderance of the evidence, the City was entitled to everything it claimed in its application.
The State had argued that the City had provided insufficient hydraulic analysis and engineering
design drawings showing that the Boating Park's structures accomplished the intended use of a a
world-class kayaking with the minimum amount of water necessary. The State also argued that ..

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