BOARD02010

• Board Meeting Date: 9/24/2001
• Description: Snowmass Water and Sanitation District 404 Permit
• Board Meetings - Doc Type: Memo

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The Petitioners request that the pennit be modified to add a protective
condition making all withdrawals from October 16-March 31 each year at the
pennitted structure subject to the stairstep minimum instream flows decreed to the
CWCB, unless the Cotps detennines that a more protective condition is needed in
the public interest, as it has done in conditioning the District's pennit in 1995. This
is a modest standard which stress~s that the flows so acquired be the minimum
necessary to protect the natural environment to a reasonable degree. In Aspen
WiJde171ess Workshop v. eWCB, the Colorado Supreme Court found that instream
flows decreed to the CWCB are, as a matter of fact and law, the flow levels which
meet that standard. Therefore, Petitioners submit that the CWCB flow levels set a
baseline below which the Cotps should not allow the pennittee to deplete the stream,
and that the CWCB flows are the appropriate minimum bypass flows which should
be applied to the District's pennit here. The pennit condition may be subject to an
exception for water supply emergency defined as damage to other sources of supply
by landslide, avalanche, fire, other acts of God, or contamination.10 The District
should also be required to upgrade its existing gauge at the diversion so that
accurate data is reported on stream flows in Snowmass Creek inunediately below the
diversion structure.

July _' 2000.

Respectfully submitted,

KELL YI HAGLUND I GAR..1\J'SEY + KAHN LLC

By
Lori Potter
1441 18th Street, Suite 300
Denver, CO 80202-1296
(.303) 296-9412

PUBLIC COUNSEL OF THE ROCKIES

10 The pennit condition also must be subject to the proviso currently contained in the
regulations that "material changes in, or a failure to implement and enforce such
[state] program or agreement, will be grounds for modifying, suspending, or
revoking the pennit." 33 C.F.R. ~ 325.4(a)(2).

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