BOARD01989

• Board Meeting Date: 5/24/2004
• Description: ISF Section - Upper Gunnison River Water Conservancy District, Case Nos. 4-02CW294 and 4-03CW107, Injury with Mitigation Proposal
• Board Meetings - Doc Type: Memo

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Finally, on the assumption that wells with on-site treatment result in consumption of only
10% of diversions, the augmentation plan would require owners of such wells to buy only
enough augmentation water to cover 10% of diversions. Even assuming that 90% ofthese
diversions does return to the stream at the location it is needed, it is likely that the returning
water is of lesser quality than the water to which the eWeB is entitled. Thus, the CWCB should
carefully evaluate this provision to detennine whether the owners of wells with on-site treatment
should be required to provide higher quality augmentation water in an amount greater than 10%
of diversions.

Equally important as working with the District to strengthen the augmentation plan and
mitigation proposal, the CWCB should take notice that the need for the augmentation plan
reveals several problems related to protection of in-stream flow rights. First, the District's
augmentation plan is necessary only because of the inadequacy of the individual 'augmentation
plans adopted when these wells were first pennitted or adjudicated. Had the CWCB and the
Attorney General's office required more protective individual augmentation plans in the first
instance, the Board would not now be in the position of having to consider accepting injury to its
in-stream flow rights. Protecting in-stream flow rights from new or changed uses is critical to
the success of the in-stream flow program, and a major component of this effort must be
requiring adequate augmentation plans to protect against out-of-priority depletions. Further,
once an augmentation plan is adopted, the CWCB should monitor it to ensure that it is
functioning properly and, when necessary, should take advantage of the water court's retained
jurisdiction to reconsider the issue of injury.

Additionally, as the District highlights in its proposal, the division engineer has
detennined that the Board's in-stream flow rights are not enforceable because of the lack of
stream flow gauges and has further determined that he will impose fines rather than curtail out-
of-priority uses. The District suggests that the CWCB must accept an imperfect augmentation
plan, which allows continued injury to the Board's in-stream flow rights, because without the
augmentation plan, the Board's rights will continue to suffer greater injury for which there would
be no redress. To avoid being put in the position of having to consider acceptance of injury in
the future, the Board should work with the Division of Water Resources to ensure that its in-
stream flow rights are enforceable. Specifically, the Board should encourage the Division of
Water Resources to curtail illegal uses, rather than merely imposing fines, and should request
that the Division of Water Resources require water users to install flow gauges when doing so
will aid in the administration of in-stream flow rights. Where water users are not required to
install gauges, the Board should attempt to install gauges on its own.

While additional gauges should improve the enforceability ofthe Board's in-stream flow
rights, TV understands that the division engineer has refused to administer the Board's rights
eyen where gauging proves injury. Specifically, TV's understanding is that the division engineer
has refused to enforce the Board's in-stream flow rights unless the entire reach of a right is being
injured. The very nature of an in-stream flow right, which protects a certain flow rate between
two points, indicates that the entire reach is entitled to protection. The division engineer is
mistaken in refusing to protect individual portions of an in-stream flow right, and TU encourages
the Board to work with the division engineer to ensure enforcement of in-stream rights,
regardless of whether the entire reach is suffering injury.

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