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

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TROUT
UNLIMITED

Andrew Peternell
Colorado Water Project

June 17,2004

Mr, Dan Merriman
Colorado Water Conservation Board
1313 Sherman Street, Room 721
Denver, Colorado 80203

Re: Rulemaking for CWCB ISF Rule 6g

Dear Mr. Merriman:

As you will recall, in February Trout Unlimited ("TU") submitted comments to the
Colorado Water Conservation Board ("CWCB" or "Board") on the proposed changes to Rule 6g
of the Rules Concerning the Colorado Instream Flow and Natural Lake Level Program ("ISF
Rules"), TV recommended that Rule 6g establish a procedural framework for CWCB
consideration of proposed loans of water for temporary instream flow ("ISF") purposes and
suggested that the Board delegate authority to the CWCB Director to take the necessary actions
to acquire and implement temporary ISF rights.

In its written comments dated June 9, 2004, the CWCB staffrejected TV's suggestion
that Rule 6g include procedures for the CWCB's consideration of temporary ISF loans,
contending that the statute authorizing the CWCB to accept such loans, C.R.S. S 37-83-105, and
the existing ISF Rules provide adequate procedures. While the statute establishes deadlines and
procedures for the division engineer to consider injury and approve or deny a temporary ISF
loan, it does not provide similar guidance for CWCB action. Moreover, while the ISF Rules
establish a procedural framework for acquisition of other ISF rights, these procedures are
incompatible with the acquisition of temporary ISF rights, and the rules establishing these
procedures, by their own terms, do not apply to ISF loans under Rule 6g. See Rule 6i. The
additions to Rule 6g that TV has recommended are fully consistent with C.R,S. S 37-83-105,
provide guidance for CWCB action that does not exist elsewhere and will eliminate any public
confusion about the procedures to be followed in reviewing temporary ISF loans.

Though not addressed in the June 9 written comments, the CWCB's counsel has also
informed TV that the CWCB has concerns about the Board's ability to delegate to the Director
its authority under C.R.S. S 37-83-105. TV's review of Colorado case law leads to the
conclusion that the Board may make such a delegation. Indeed, the Colorado Supreme Court has
noted that "the modem tendency ofthe courts is toward greater liberality in permitting grants of
discretion to administrative officials in order to facilitate the administration of the laws as the
complexity of governmental and economic conditions increases." Fremont Re-l School District

Trout Unlimited: America's Leading Coldwater Fisheries Conservation Organization
Colorado Office: 1320 Pearl Street, Suite 320, Boulder, Colorado 80302
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