BOARD01451

• Board Meeting Date: 9/13/2004
• Description: ISF Section - Paul Moltz, Case No. 2-02CW073 - Consideration of Inundation Proposal or, in the Alternative, a Request for Authorization to Proceed to Trial
• Board Meetings - Doc Type: Memo

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STATE OF COLORADO

Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street Room 721
Denver, Colorado 80203
Phone: [phone]
FAX: (31ll) 866-4474
www.cwcb.state.co.us

MEMORANDUM

Bill Owens
Governor

To:

Colorado Water Conservation Board Members

Russell George
Executive Director

From: Ted Kowalski

Rod Kuharich
CWCS Director

Date: September 7, 2004

Dan McAuliffe
Deputy Director
Re: Agenda No.9, September 14-15, 2004 Board Meeting, Stream and Lake Protection - Paul
Moltz, Case No. 2- 02CW073 - Consideration of Inundation Proposal or, in the alternative, a
request for authorization to proceed to trial

Back!!TOund
Case No. 2-03CW073 involves a water rights application for a water storage right and a plan for
augmentation ne8I the Town of Johnson Village (see the attached map). The Board has an instream
flow water right on Trout Creek and filed a statement of opposition because the proposed reservoir
would inundate the Board's instream flow water right and because the proposed augmentation may
not replace depletions in time, place and amount. Soon after the Board Staff filed a statement of
opposition, the Board Stafflearned that the Applicant had already constructed the reservoir applied
for in this water rights application. The State Engineer mistakenly approved the dam design and
construction because of the way that the tabulation described the Board's instream flow right. When
reviewing the dam design, the Staff person for the State Engineer did not discover that the Board
held an instream flow water right on Trout Creek. To the Staffs knowledge, the tabulation for each
division has been corrected to better describe the Board's instream flow water rights so that that type
of mistake does not happen again; however, the situation that exists on Trout Creek needs to be
addressed presently. The Applicant has requested to inundate the Board's Trout Creek instream
flow (even though technically the inundation has already occurred), pursuant to Rule 7 of the ISF
Rules.

Rules Relevant to the Inundation Proposal

The Board has not considered a request to inundate for several years. As such, this is the first time
that the current Board will have to implement the Board's Rules on inundation. There are a number
of Rules relevant to this proposal, and they are provided below.

Rule 7c provides:

Colorado Water Conservation Board
Flood Protection. Water Supply Planning and Finance. Stream and Lake Protection
Water Supply Protection. Conservc.tion and Drought Planning