BOARD01773

• Board Meeting Date: 11/16/2004
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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On August 7, 2003, the Colorado River Water Conservation District and several other west-
slope entities filed a petition against the Bureau of Reclamation in D,S, District Court for
Colorado to enforce the provisions of the Blue River Decree. The west slope petitioners are
seeking changes of Bureau of Reclamation policy concerning the interrelationships of the
replacement pool and power pool in Green Mountain Reservoir, The Division of Water
Resources has intervened in this litigation. The court has ordered a scheduling conference for
December I, 2004 before Magistrate Judge Shaffer. This conference will result in a discovery
and motions timetable, The principal parties have also indicated an interest in mediating a
settlement.

Green Mountain Reservoir administration issues, The drought has raised issues about how
the State Engineer administers the fill of Green Mountain Reservoir. The State Engineer adopted
an interim policy that compromised the positions of the east and west slopes, A committee of
interested parties was formed to work out an acceptable agreement on administration, The
parties last met on November 8, 2004, The U.S, Bureau of Reclamation agreed to provide a draft
operating plan for Green Mountain Reservoir by December 3'd Comments on this plan are due
December 31 st, with a follow-up meeting January 20th, The meeting participants expressed an
interest in reaching a comprehensive and binding resolution of Blue River Decree operations,
They have not decided on a format or legal vehicle for achieving this goal.

9. Application of City of Central (Case No. 92CW] 68),

On April 2, 2004, the Division I Water Court ruled that while Central City may be diverting
its water rights out-of-priority with respect to calling rights, it is not diverting out-of-priority
with respect to the CWCB's right, because the CWCB's right is junior to Central City's rights
and historically has been satisfied due to a downstream senior call. The court held because the
CWCB cannot call out Central City's senior right, the CWCB cannot show injury to its vested
right, and is not entitled to protective terms and conditions in Central City's augmentation plan,
The Attorney General's Office filed a Notice of Appeal of this case with the Colorado Supreme
Court on May 14, and the CWCB's Opening Brief is due December 20, 2004. The State and
Division Engineers Office are planning on filing a brief in support of the CWCB.

]0. RICO Application of Upper Gunnison Water Conservancy District (Case No,
02CW038).

The Supreme Court granted the State's request for expedited review of this matter, and oral
argument in the Supreme Court is scheduled for December 6, 2004,

] 1. South Platte Three-State Cooperative Agreement.

The key to the implementation of the proposed program is the FWS biological opinion. The
states and the federal agencies are discussing how to define the program for its evaluation in the
biological opinion, The states believe that because of numerous scientific uncertainties, they
should be judged on whether they perform what they have committed to under the program,
rather than on uncertain assumptions about species recovery, The starting date for the program
has been pushed back to the summer or fall of 2006, largely because ofthe federal budget
process, The program needs to be finalized through the EIS and biological opinion stages before
Congress can begin work on funding its share of the program, If those steps can be completed

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