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<br />Porzak Browning & Bushong LLP <br /> <br />Attorneys <br /> <br />a t <br /> <br />Law <br /> <br />Lawrence 1. MacDonnell <br />Of Counsel <br /> <br />. <br /> <br />Glenn B. Porzak <br />Michael F. Browning <br />Steven J. Bushong <br />P. Fritz HoUeman <br />Kristin Howse Moseley <br />Kevin J. Kinnear <br /> <br />929 Pearl Street, Suile 300 . Boulder. CO 80302 <br />303 443,6800 . Fax 303 443,6864 <br /> <br />Vail Office: <br />846 Forest Road <br />Vail. CO 81657 <br />970477,5419 Tel. <br />970477,5429 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 well 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 will have no alternative but to litigate this legal authority issue. <br />Moreover, any new filing will by necessity constitute are-opening of the existing decree. <br />Accordingly, any re-opening ofthe existing decree will need to consider the following issues and <br />conditions: <br /> <br />1. The Eagle River is over appropriated and there is no water available for <br />appropriation. <br /> <br />. <br /> <br />fd9382 <br />