BOARD01677

• Board Meeting Date: 7/26/1999
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

press, environmental groups and concerned citizens. The tour is to be followed by a town
meeting on July 20 about the town's proposal to divert water from Miners Creek into a ditch for
use by the town.

The CWCB filed a Statement of Opposition to the Town's water rights application to
protect its instream flow water rights on Miners Creek and the Blue River in March 1998.

At its March 1999 board meeting, the Town approached the CWCB with a request for
injury with mitigation on Miners Creek. The request was denied because the Town's proposed
mitigation package did not allow the board to make a requisite finding that the natural
environment of Miners Creek would continue to be preserved to a reasonable degree. However,
based on evidence presented during the discussion of this agenda item, the Board asked its staff
to investigate the possible need for a modification of its decreed instream flow right on Miners
Creek.

Staff has met with Breckenridge's attorney, Glen Porzak, who suggested that the CWCB
staff consider a stipulation where Breckenridge would agree to recognize either the Board's
current instream flow amount or some lesser amount, should the modification procedure result in
a reduction of the Board's right in the future. This approach would provide full protect for the
Board's current instream flow water right and allow Breckenridge to pursue their pending water
right application in a timely manner.

In the 25-year history of the instream flow program there has only been one modification
of a decreed instream flow water right. The CWCB initiate its first modification process in 1992
on Snowmass Creek in Pitkin County. That modification was extremely contentious, requiring
hearings and appeals before the Denver District Court and Colorado Supreme Court before being
decided in 1996.

Procedural Considerations: In 1996, the General Assembly passed Senate Bill 64 that
chlrified the procedures the CWCB must follow to modify a decreed instream flow water right.
Those procedures have been incOlporated into Colorado Revised Statues at 937-92-102(4).
Pursuant to 937-92-102(4), any modification of the Miners Creek instream flow water right
would require at least two Board meetings. Upon written request, the Board may also be
required to provide an opportunity for a quasi-judicial hearing including "reasonable disclosure,
discovery, subpoenas, direct examination, and cross examination".

Technical Considerations: We will evaluate several factors as we investigate the need for
a modification of the Miners Creek instream flow water right and bring this issue back to you.
These factors include segmentation, summer/winter flow amounts, physical and legal water
availability, and quantification of the natural environment.

I. Segmentation
· As decreed, the Board's Miners Creek instream flow water right runs from the headwaters of
Miners Creek to its confluence with Dillon Reservoir (approximately five miles).
· The original instream flow recommendation was based on a cross section located near the
downstream terminus of the decreed instream flow reach. This cross section may not
accurately reflect the amount of water necessary to preserve the natural environment to a
reasonable degree in the upper reaches of Miners Creek.
· Miners Creek is likely to be a gaining stream reach with little water flowing in the
headwaters and greater flows in the lower reaches.

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