BOARD02058

• Board Meeting Date: 7/18/2005
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

WATER RIGHTS UNIT MATTERS

1. CWCB ISF Application on Gunnison River throul!h the Black Canyon (Case No.
03CW26S).

Nothing new to report,

2. Application of City of Central (Case No. 92CW168).

On April 2, 2004, the Division I Water Court ruled as a matter oflaw that applicant the City
of Central was entitled to operate a new plan for augmentation, including new junior exchanges,
without protecting the Colorado Water Conservation Board's existing instream flow,
Specifically, the Water Court held that an applicant for a plan for augmentation may make new,
out-of-priority diversions under a plan for augmentation including exchange, without agreeing to
tenus and conditions sufficient to protect all existing vested water rights from reduced
streamflow within the exchange reach. Both the CWCB and the Office of the State and Division
Engineers believe this to be an incorrect interpretation of the law, On May 14, 2004, the
Attorney General's Office filed a Notice of Appeal of this case with the Colorado Supreme
Court. On January 10, 2005 the Attorney General's Office filed an Opening Brief on behalf of
the CWCB, as well as another brief supporting the CWCB's position on behalf of the State and
Division Engineers, Numhous other water users have filed amicus briefs supporting the
Attorney General's position, including the Colorado River Water Conservation District, the
Southeastern Colorado Water Conservancy District, the Northern Colorado Water Conservancy
District, Trout Unlimited, and Excel Energy,

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John Cyran and Alex Davis argued the issues before the Colorado Supreme Court on June
16,2005, Although the questions are not necessarily indicative of the way the Court is leaning,
many of the questions seemed favorable to our position. The Case is now awaiting decision by
the Court.

3. RICO Application of Upper Gunnison Water Conservancy District (Case No.
02CW038).

On March 14, 2005, the Colorado Supreme Court issued its opinion concerning Gunnison's
recreational inchannel diversion ("RICD") water right application. Colorado Water
Conservation Board v, Upper Gunnison River Water Conservancy District, 109 P.3d 595 (Colo.
2005) ("Gunnison"). The Court held that both the CWCB and the water court erred, The
CWCB exceeded its review authority under Senate Bill 01-216 by considering stream flow
amounts and recreation experiences other than those intended by Applicant. The water court
erred by failing to give effect to the phrases "minimum stream flow" "for a reasonable recreation
experience in and on the water" as required by the statutory definition of a RICD, Accordingly,
the Court remanded the case to the water court with instructions to remand to the CWCB for
factual findings on whether the application--strictly the stream flows and recreation experience
submitted--comports with the five statutory factors,

On May 17, 2005, the Applicant submitted a Position Statement Concerning Scope and Timing
of Remand Proceedings Before the CWCB. In the document, the Applicant asked the Court to .
remand the case to the CWCB with directions that: (1) the CWCB only consider two of five

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