BOARD01180

• Board Meeting Date: 11/20/2000
• Description: ISF Section - Regional Flow Discussion of Next Steps
• Board Meetings - Doc Type: Memo

Possibility still exists that entities could attempt to use ICDs to export water from the State and limit
Colorado's ability to develop its compaet entitlements. However, it is arguable that the export statutes
would apply to ICDs and prevent ICDs from being used to export water out of Colorado. _
Entities eould still attempt to use ICDs to eontrol and/or prevent upstream water development, growth, ..
and land use.
Court deeisions would be unpredietable and could produee inconsistent results aeross the State.
+ CWCB could deeide whether an appropriation is reasonable, and proceed to trial, on a ease-by-ease
basis.
What would the CWCB use as the criteria to judge whether the amount sought in a filing for an ICD is
reasonable? How does the CWCB determine the reasonableness of the amounl of an ICD?
Does this type of participation by the CWCB in the adjudieation ofICDs pose the question of
implementation by the CWCB of the publie trust doetrine? If so, what authority would be utilized
and what ramifications would be realized?
+/- Similar questions and aetions are applieable to both boating type ICDs and biologieal ICDs, sueh as for
fish ladders.

2. The Board could facilitate basin-wide water development planning to assure efficient water use.
Slaffing eoneems.
Priorilization. Whieh basins are most eritical?
Why should waler users eome to the table to let a state ageney direet water development?
+ No legislative change would be required.
What is the planning horizon (years) that would be used in these planning studies? Would it be
neeessary to eonsider water demands for the basin through "build out?"
Does this invoke the publie trust doctrine? What entity or entities would have the authority to determina
the aetual use of the available unappropriated water within the basin? What would be the statutory basi.
for that authority to determine beneficial use or limitalions on beneficial use under this seenario.

3. The Board could continue to oppose ICDs to assure that they do not infringe upon the CWCB's
exclusive authority to appropriate instream flows, and in the future oppose ICDs to assure that
they are reasonable and appropriate, by limiting the amount of water to the amount that is
"reasonable and appropriate under reasonably efficient practices to accomplish without waste the
purpose for which the appropriation is lawfully made."
Staffing eoneems. Where would the resourees eome from? CWCB may need to hire consultants to
testify about appropriate flows for boating purposes.
This eould eontradict the eonstitutional provision guaranteeing persons the righl to divert the waters of
the state.
Coneems regarding Colorado's eompaet entitlements.
Entities could still attempt to use ICDs to eontrol and/or prevent upstream water development, growth,
and land use.
+ No legislative ehange would be required.
Court decisions may prove to be unpredietable and allow ineonsistent results aeross the State.
+ The CWCB could decide whether an appropriation is reasonable, and proceed to trial, on a case-by-ease
basis.
+/- Is it more appropriale for the State Engineer's Offiee and other water users to raise these poliey issues?

4. The Board could continue to oppose ICDs only to assure that the water diversion does not infrina
upon the CWCB's exclusive authority to appropriate instream flows.

Flood Protection. Water Project Planning and Financing. Stream and Lake Protection
Water Supply Protection. Conservation Planning