BOARD02010

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

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STATE OF COLORADO

Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Cotorado 80203
Phone: (303) 866,3441
FAX: [phone]
www.C.Wcb.state.co.us

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August 14,2001

Bill Owens
Governor

G<eg E. Walcher
Executive Director

Art Champ, Chief Regulatory Branch
Sacramento District .. . . . . ,
U.S. Army Corps ofBngineers
1325 J Street
Sacramento, CA 95814

Rod Kuharich
CWCB Director

Dan McAuliffe
Deputy Director

Re: I'etition to the Department.of the Ar~, Corps o[Engineers by Snowmass-Capitol Creek
Caucus, et aI, for reexamination and modification of Permit No. 190106516

e Dear Mr, Champ: .

I am writing in response to our meeting of August 13, 2001, on the above referenced petition to
reexamine and modify the Section 404 permit of the Snowmass Wate! and Sanitation District.

I cannot impress on you enough the gravity of the decision to re-open this permit. As you stated in our
meeting, should the Corps ofBngineers (COB) decide to re-open this permit, it will be the first time the
COE has considered such an action on the petition of a third party to impose bypass flows for
enviro=ental purposes, This action requested by the Caucus would have the effect of "taking" the
decreed water rights of the permitee and applying the water to instream flow protection, thus denying the
current holder of the water rights their existing decreed use.

Under Colorado and federa11aw, the Petitioner should work within the state's water rights system to
develop available water resources to supplement what they feel are inadequate winter stream flows, The
CWCB is ready to work with the Caucus to investigate the development of a water resource project to
address its concerns,

A number of things about our meeting caused me great concern, First, your opening statement that the
COB was going to determine the adequacy of the CWCB's instream flow water rights to protect the
natural environment of Snowmass Creek. This determination under Colorado law belongs exclusively to
the CWCB. For the COB to state that it will pass judgement on CWCB decisions confll1I1ed by state
courts is questionable. Furthermore, the McCarran Amendment provides that the Federal Government
must abide by state water laws. I believe the COB is being asked to do something that goes far beyond
its authority and responsibility.

Secondly, your representation that the decision to open the permit is not governed by any formal public
involvement process, but instead is a decision that COB can make without public input, solely on the
request of a third party petitioner is very troubling, in light of the need for all levels of government to be

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Flood Protection. Water Project Plalllling and Financing. Stream and Lake Protection
Water Supply Protection. Conservation Planning