BOARD02010

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

Caucus was made aware ofthe flow rate developed and agreed to by the County. The Caucus
was not involved in the development ofthe 4 cfs s.urvival flow and the Caucus signed their e
agreement with SWSD, and withdrew their objections to the 404 permit, prior to the
development of the 4 cfs survival flow. The CorpS of Engineers was also not involved in the
development of this survival flow, and the flow was determined after the permit was issued, In
our August 23, 1978 letter to Mr. Zeigler (who objected to the permit) we stated, "the applicant,
and Pitkin County, and the Caucus.have gone to considerable effort to insure that all parties are
satisfied", It does not appear that all parties are satisfied that the agreements will protect the
aquatic environment.

6. The 4 CFS Survival Flow: Since the petitioIl requests that we evaluate the merits of the
CWCB in-stream flow as compared to the only exiisting by-pass flow for municipal diversions
(the 4 cfs survival flow) we need to look at how the survival flow was determined.
Unfortunately, the method for development ofthe 4 cfs survival flow is yet unknown, During
the CWCB proceedings, Mr. Jay Skinner, a fishery biologist with the Colorado Division of
Wildlife (CDOW) who assists the CWCB, searched the CDOW files and was unable to find any
record, He presumed it was developed over the telephone, The Permittee claims Mr. Skinner's
assumptions are incorrect and that the. files are simply missing, After reviewing the records, one
could speculate how the 4 cfs flow was determin~d, In a June 26, 1978 letter from Mr,
Leavenworth, Pitkin County attorney, to Mr, Sanderson, attorney for the SWSD, the 4 cfs
survival flow is discussed, It was provided by the CWCB and developed by the CDOW
according to the letter. In the next to last sentence, Mr, Leavenworth writes, " I would note that
Wright Water Engineers believes the historic low flow on Snowmass Creek is 10 cfs, which
equals the sum of the Division of Wildlife survival flow and the District's decreed water right." e
Apparently, Mr, Leavenworth was trying to point' out how this survival flow was determined.
The CDOW or CWCB simply may have taken the low flow discharge, subtracted the full
decreed water right ofthe SWSD, 6 cfs, and developed the 4 cfs survival flow,

The Petitioners contend that:

. the 4 cfs survival flow was not set in the manner specified in the 1978 Agreement
between the Caucus and the SWSD, and in consideration of that agreement the
Caucus withdrew its objections to!the 404 permit,
. the Caucus did not participate in t~e development of that survival flow, there is
not a scientific record of how the bow was determined,
. the CWCB repudiated the 4 cfs survival flow during the in-stream flow
determinations in 1993 and 1995, 'scientific studies conducted between 1992 and
1996 support the conclusion that 4 cfs is an inadequate by-pass flow to protect the
aquatic environment
. the best available scientific data s*pports a permit condition with a by-pass flow
equal to the CWCB in-stream flow right.
!

The Permittee argues that there is not a ldgal justification for the Corps to modify the
permit because the SWSD did not falsify information in their application and there are not any
impacts to the stream, They also counter that the Petitioners' arguments concerning the SWSD's a
failure to meet the terms of the 1978 Agreements are false, and support this with the fact that a ..

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