BOARD01673

• Board Meeting Date: 3/21/2006
• Description: WSP Section - Request to Obtain Authorization to expend funds from the Litigation Fund to defend and protect Colorado's allocation of water from the Colorado River
• Board Meetings - Doc Type: Memo

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litigation, the Colorado attorney general requests that the board authorize the expenditure of
moneys in a specified amount not to exceed the balance of the fund for the costs oflitigation .
associated with one or more specifically identified lawsuits meeting the criteria set forth in
paragraph (a) of this subsection (2.5).

Section (c) of subsection 2.5 provides: "Any interest earned on the moneys in the litigation fund
shall be credited on an annual basis to the litigation fund created in paragraph (a) of this subsection
(2.5).

To date, this Board has authorized three expenditures from the litigation fund. In March 2003, the
Board authorized the use of up to $750,000 of the litigation fund, in connection with the Kansas v.
Colorado litigation, to: 1) design, install, and operate lysimeters at the Colorado State University
Agricultural Experiment Station at Rocky Ford; 2) enhance the CoAgMet Electronic Weather
Station Network in the Lower Arkansas River Basin; 3) conduct field investigations to monitor
irrigation water management: volume, timing and quality of applied water and resultant crop yields
in the Lower Arkansas River Basin; and 4) review the H-I Model by potential expert witnesses after
changes have been made by the State Engineer's Office. In November 2004, the Board authorized
the expenditure of $250,000 to conduct work related to the potential of litigation involving the
Colorado River between the seven basin states. In addition, in November the Board authorized the
use of $40,000 to hire and attorney to represent the Board in the finalization of the Platte River
Three State Program Agreement. Thus, the fund currently has approximately $2,000,000.00 in it.
You may recall that the Department of Natural Resources recommended, and you concurred, that the
Construction Fund bill should request replenishment ofthe litigation fund up to the original
$4,000,000, and this bill (House Bill 1311) is proceeding through the House.

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With regard to the $250,000 that this Board authorized for expenditure associated with the potential
seven states litigation involving the Colorado River, the State has encumbered $100,000 for the
services of a historian to obtain the relevant historical documents associated with the law of the
river. The other $150,000 has been earmarked for imaging documents into a searchable database
and for related travel and equipment costs. However, the original authorization from the Board
authorized the CWCB staff and the Office of the Attorney General to "allocate funds between
activities based on actual costs and litigation necessities." As such, the Staffs of the CWCB and the
Attorney General's Office intend to use this money to hire three attorneys and a paralegal to assist in
the development of our legal strategy, and to continue to develop a searchable database of the
documents associated with the law of the river. In addition, the Office ofthe Attorney General has
requested that the Board authorize the use of up to an additional $960,000. A more detailed
description of the work that will be accomplished, and the resources need to accomplish this work is
attached to the letter from the Office ofthe Attorney General.

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Staff Recommendation

Clearly the request from the Office of the Attorney General falls within the scope of Section 37-60-
121(2.5), C.R.S.

There are few issues that are more important to the State of Colorado's future as it relates to water
resources. Thus, the staff recommends that the Board:

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