BOARD01617

• Board Meeting Date: 5/19/2003
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

Platte River Basin

South Platte Rules and Regulations: In December, Division 1 Water Court Judge Hays ruled that the
State Engineer did not have authority to approve out-of.priority diversions pursuant to the South Platte
Rules and Regulations, which were developed last spririg. This decision is puzzlirig given the
promulgation of similar rules and regulations for the Ar)<ansas and approved by Division 2 Judge
Anderson, and the Supreme Court's decision in the Empire Lodge case. In addition, Judge Hays'
decision deserves careful consideration in light of the apparent statutory authority provided to the State
Engineer to promulgate rules and regulations for ground water diversions.

The Office of the Attorney General filed an appeal to the State Supreme Court and oral arguments
were herd iri February.

On April 30 the Supreme Court rulirig was received rev:ersirig in part and affIrming in part the water
courts decision. First, the Supreme Court held that provisions in the proposed rules which allow the
State Engineer, without an augumentation plan application pendirig in water court, to authorize out-of-
priority groundwater depletions requiririg replacement plans are in excess of his statutory authority and
contrary to law. Second, the Supreme Court held that the State ):!p.gineer has authority, pursuant to his
compact rule power to promulgate rules for the South :J:'latte River Basin. Third, the Supreme Court
holds that that the effective date of proposed rules must be stayed until all protests filed agairist
proposed rules are heard and resolved by the water court. Thus, the case was remanded back to the
water water court for further proceedings.

The parties involved in the rule making have continued to meet to discuss options.

Platte River Cooperative Agreement Update: Work'on the Cooperative Agreement (CA) contiriues
but progress is slow.

Colorado provided additional information on potential operating plans for Tamarack I (our iriitial
10,000 acre-feet contribution to the proposed program); the National Academy of Science (NAS)
assembled a review committee and scheduled the first ,field hearing (May 6); Nebraska, Wyoming and
the Federal govenunent provided additional irifonnatiqn on their future depletion plans; and the CA
participants began discussion for extendirig the CA to allow time for completion of the Environmental
Impact Statement (EIS) and to fmalize the proposed ptogram. These points are described below iri
more detail.

Colorado offered additional information on the operation of Tamarack I iri order to help address
Nebraska's concerns that the operations may affect their water rights holders and the Environmental
Account in Lake McConaughy. Under the proposed operating scenario Colorado would try to have
Tamarack water retuning to the river when there is les~ demand by senior water rights in Colorado.
This approach appeared to address some of Nebraska's concerns but significant issues persist.

The NAS process has gotten off to a very bad start. The review committee appears to have a high
potential for bias. There are a few individuals that haye a long history with the Platte and would stand
to potentially benefit if more money and research is added to Platte related issues. In addition, a
majority of the reviewers are academic and tend to have a pro-environmental background/philosophy.
Finally, the agenda for the field hearing will be five hours of U.S. Fish and Wildlife Service (Service)
employees or pro-Service presenters. Colorado and our water users have sent a very strong letter to the
NAS and the executive director for the CA expressing these and other concerns.

Nebraska and Wyoming's future depletion plans have been developed in more detail but are not yet
ready for technical review. Nebraska's plan remains the most difficult to fully understand or support
because of the lack of detail and the emphasis on developing water in the Platte once target flows are

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