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<br />in the manner. place, and use of the water right. Since only CWCB can hold a water <br />right for an instream flow, any water to be loaned could not already be decreed by the <br />Water Court for that purpose. Obviously. to be used for instream flow purposes will <br />require a change in the use of that water. Historically, the Water Court has been the <br />sole determiner of a change of water rights and has had the duty of determining if injury <br />will occur and under what terms and conditions the change can be effected in order to <br />prevent injury, Water Court change cases have historically involved complex legal and <br />engineering issues, and have taken years before a solution that prevents injury is <br />reached, <br /> <br />4, The Colorado legislature has seen fit of late to redistribute the duty for <br />determining changes of water rights and the injury analysis to others beyond the Water <br />Court (to the State Engineer for substitute supply plans in CRS, ~37-92-308. and to <br />the Division Engineer for instream flow loans in C.R.S. ~ 37-83-105(2)). In this process, <br />the legislature has significantly limited the timing and procedures for evaluating injury, <br />It is UAWCD's belief that these limits adversely impact the Division Engineer's ability to <br />analyze the potential for injury and to craft terms and conditions to prevent injury, The <br />prime example is the 15 day period for comments from other water rights holders <br />provided by CRS. ~ 37-83-105(2)(b)(V), Fifteen days is not even sufficient time for <br />most parties to distribute the notice to the appropriate consultant for review, let alone <br />for the engineering consultant to actually undertake the review, UAWCD can provide <br />testimony from its own engineering consultant that 15 days is woefully insufficient for <br />him to evaluate a request and draft comments, The CWCS need only ask the Division <br />Engineer in Water Division No, 2; and UAWCD believes it will get the same reaction, <br /> <br />5, There does not appear to be any prohibition against CWCS establishing <br />different timetables and procedures for evaluation in its rulemaking process. Despite <br />the existence of an "emergency". the CWCB should err on the side of protection of <br />water rights, if it must err at all, UAWCD recommends that the CWCB provide in its rule <br />6.g. that the Division Engineer give the owners of water rights and conditional water <br />rights at 60 days (no fewer than 30 days) to submit comments on a proposed loan, <br /> <br />6, The CWCB should provide in its rules some procedure for the Division <br />Engineer to request additional or more detailed information from an applicant in order to <br />properly evaluate the loan and the potential for injury. This appears to be a frequent <br />occurrence in substitute supply plan requests; and is likely to be needed with instream <br />flow loans. Thus. the rules should be drafted to give the Division Engineer this <br />flexibility, <br /> <br />7. The CWCB should consider an amendment to the rules that requires <br />more detailed information from the applicant than that required under C.R.S, 937.83- <br />105, For example, "a reasonable estimate of the historic consumptive use of the <br /> <br />13972-63C j:\UAWCDICWCB comments <br />