BOARD01917

• Board Meeting Date: 3/16/2004
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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Slope Environmental Resource Council; Trout Unlimited; and the Colorado River Water
Conservation District. Parker Water and Sanitation District filed a SOP; at the administrative
level, the District was part of a group of parties who participated jointly and is the only member
of that group who filed a SOP. The United States of America filed a SOP that did not identify
any specific federal agency as an objector. Objectors who did not participate in the Board's
administrative proceedings are the City of Delta, Crystal Creek Homeowners Association,
Milton Graves, Douglas E. Bryant and Nancy Williams as Trustees of certain trusts under the
wills of Ernest Cockrell, Jr. and Virginia H. Cockrell, and Redlands Water and Power Company.
The Board members may wish to discuss the pending case with counsel in executive session.

7. Trout Unlimited v. Department of Agriculture/Okanol!an County v. National Marine
Fisheries Service.
The Okanogan County case is a case out of Washington State involving the Forest Service's
authority to impose bypass flows on special use permit holders in order to benefit endangered
fish. The Board may remember that Colorado filed an amicus brief in support ofthe water users,
arguing that the Forest Service didn't have the authority to impose bypass flows. Unfortunately,
the Ninth Circuit affirmed the Washington District Court's ruling that the Forest Service has that
authority under FLPMA, and that the controversy was not over water rights, but over rights of
way over public land. The water users filed a petition for certiorari with the U.S. Supreme Court
on January 29. If certiorari is granted, several Western states are considering whether to
participate as amici curiae. The Board may wish to discuss this in executive session.

8. Green Mountain Reservoir/Heenev landslide case.
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 U.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, compensatory pool and the historic users' pool in Green Mountain Reservoir.

Our motion to intervene on behalf of the Division of Water Resources is still pending. The
motions to dismiss the U.S. and Northern filed have been fully briefed but not decided.

9. Application of Citv of Central (Case No. 92CW168)
The CWCB participated in Central City's augmentation plan case to protect its ISF water
right on North Clear Creek in Gilpin County. Surprisingly, in January Water Judge Roger Klein
ruled that Central City need not include terms and conditions prohibiting out-of-priority
diversions by Central City when the ISF right is not being met. The Water Court held that plans
for augmentation need not protect from injury those water users junior to the original out-of-
priority right being augmented under the plan, but senior to the plan for augmentation. At the
January Board meeting, the Board voted to authorize our office to appeal the Water Court's
ruling in this case.

In the meantime, on January 26 Blackhawk and Central City filed motions for
reconsideration on a number of issues, including a motion by Central City requesting that the
Court reconsider its ruling that plans for augmentation need not prevent injury to
.. nonconsumptive rights, such as the CWCS's instream flow right. Central City did not disagree

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