BOARD02232

• Board Meeting Date: 7/20/2004
• Description: ISF Section - Rulemaking Hearing - Proposed Changes to ISF Rules 6g and 6i
• Board Meetings - Doc Type: Memo

preserve the natural environment in an emergency situation with the need to provide an
opportunity for notice and comment. This balancing by the General Assembly resulted in
the procedures set forth in H.B. 1320. In establishing H.B. 1320's procedural timelines,
the General Assembly appropriately recognized that these loans only may occur in
emergency conditions and that a longer comment period would frustrate the purpose of
the bill. Further, in testimony and discussions ofH.B. 1320 before both the House and
Senate Ag Committees, both witnesses and legislators recognized the State Engineer's
qualifications, ability and experience in evaluating proposals for potential injury to water
rights in a short time frame (for example, under section 37-92-308, C.R.S.). In effect, the
District is asking the CWCB to substitute its judgment for that of the General Assembly
by requesting the CWCB to adopt different procedures in the 1SF Rules,

TV has requested that the CWCB add language to Rule 6g establishing deadlines and
procedures for the CWCB staff to follow with respect to loans of water rights for
temporary 1SF use,

Section 37-83-105(2) establishes deadlines for review and comment and procedures
for approval ofloans, Further, the lSF Rules establish the actions the CWCB must take
in acquiring water rights. Because the statute and the 1SF Rules provide sufficient
procedures and guidance, Staff recommends that the CWCB adopt Rule 6g as proposed.

2, Section 37-83-105(2)(a)(1) authorizes the State and Division Engineers to request
additional or more detailed information from the CWCB or a loan proponent to
assist in his evaluation of the potential for injury.

The District has suggested that the CWCB add language to Rule 6g establishing a
procedure for the State and Division Engineers to request more information on a
proposed loan of water rights for temporary 1SF use. (District comment #6). However,
section 37-83-l05(2)(a)(I), C.R.S, (2003) requires the CWCB to "compile a statement
about the duration of the loan, a description of the original points of diversion, and other
relevant information sufficient for the state engineer to determine that such loan does not
iniure existing decreed water rights." (Emphasis added), This provision clearly allows
the State and Division Engineers to request more information if needed, which also
addresses the concemexpressed in the District's comment #7, Section 37-83-
1 05(2)(b )(1) requires the proponent of a water rights loan to provide additional
information to the State and Division Engineer. Further, under section 37-83-
1 05(2)(b )(V), potentially affected water users have the opportunity to provide the State
and Division Engineers with claims of injury, suggested terms and conditions to prevent
such injury, and any other information the commenting party wishes the State and
Division Engineers to consider in reviewing the proposed loan, Because the State and
Division Engineers have authority to request additional information, Staff recommends
that the CWCB adopt Rule 6g as proposed.