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<br />,., <br />. <br /> <br />,. <br /> <br />Porzak Browning & Bushong LLP <br /> <br />. <br /> <br />GlOM I!, Porzak <br />Mkbaet F. Browninl <br />s..... J. BIIIIIoa. <br />P. Fritz Hol_ <br />Krim How.. Moseloy <br />Kevi. J, Ki-.r <br /> <br />Attorneys' at . La. <br /> <br />929 Pearl s_~ Sui.. 300 '1IouJda-. CO 10302 <br />303 443-6800 . Fax J03 443-6864 <br /> <br />Lawroace J, IoIa<DoaacIl <br />Of COUIIJd <br /> <br />Wlil 011k" <br />846 F....' Rood <br />VIil,COalM1 <br />9'7O-4n-"'19 Tol. <br />910-4n-"'29 Fax. <br /> <br />November 3, 2005 <br /> <br />Colorado Water Conservation Board <br />1313 Sherman. Room 723 <br />Denver, CO 80203 <br /> <br />Dear Board Members: <br /> <br />, <br /> <br />Reference is made to the proposal to enlarge the existing instream flow for the Eagle <br />River decreed in Division No.5 Case No. 78CW3796. As you are weIl aware, the CWCB only <br />has statutory authority to appropriate the minimum amount to preserve the natural environment <br />to a reasonable degree. The decree in Case No. 78CW3796 is res adjudicata that the original <br />amounts decreed in that case are the minimum amounts to protect the natural environment to a <br />reasonable degree. Accordingly, any additional amounts beyond those decreed minimums would <br />exceed the CWCB's statutory authority. <br /> <br />The foregoing is confirmed by the deposition testimony of Linda Bassi in a recent <br />Division 5 case in which this very issue was raised regarding the instream flow reach at issue and <br />decreed in Case No. 78CW3796 (the segment of the Eagle River from the confluence with Cross <br />Creek to the confluence with Gore Creek). As evidenced by the enclosed transcript, Ms. Bassi <br />admitted (i) the CWCB has no authority to appropriate more than the minimum amounts; (2) the <br />existing decreed amounts are the minimum amounts; and (3) any greater flow would be more <br />than the minimum amounts. <br /> <br />In view of the foregoing, request is hereby made that the CWCB not pursue any further <br />instream flow on the Eagle River between Cross and Gore Creeks. Should such an enlargement <br />be pursued, my clients wiIl have no alternative but to litigate this legal authority issue. <br />Moreover, any new filing wiIl by necessity constitute are-opening of the existing decree. <br />Accordingly, any re-opening of the existing decree wiIl need to consider the foIlowing issues and <br />conditions: <br /> <br />I. The Eagle River is over appropriated and there is no water available for <br />appropriation. <br /> <br />~ <br /> <br />fd9382 <br />