BOARD02297

• Board Meeting Date: 1/12/1998
• Description: ISF Section - Proposed Revisions to Instream Flow and Natural Lake Level Program Rules
• Board Meetings - Doc Type: Memo

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At:t:achment: Agenda It:em 30

M E M 0 RAN 0 U M

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Colorado Water Conservation Board
Kcn Clark III
Proposed Changes to ISF-NLL Rules
January 21,1998

Thank you for the opportunity to comment on these proposed changes and their implications for thc
States [nstream Flow Program. As many of you arc aware, I have maintained great interest in the ISF
I'rogram since the Board adopted its Rules. These comments are based upon draft proposals
distributed by staff in a mcmorandum dated October 24, 1997.

I understand that most of these proposed changes are in response to court decisions and the dircction
of the Gcncral Asscmbly expressed in 513 96-64 and therefore must be made to remain consistent
with those directives. The Board's procedure for acting on a determination to decrease an
appropriated instream flow water right is still most nenlesome, as it has been since the Rules wen:
lirst adoptcd. In contrast wirh the Board's leisurely pace of seeking new appropriations - especially
in respcet to selccting an appropriation date .1 remain disturbed at the Goard's apparent eagerness to
disposc ofits ISF water rights as indicated in Section 10.40 of the Rules.

It is the nature of new ISF appropriations that they are based largely on the best available modeling
techniques and infonned conjecture on the ecntral qucstion: Will a ccrtain stream flow or natural
lake level "protect the natural environmcnt to a rcasonable dcgrce?" An environment.11 nccd is
identified, a solution is offercd, and a water right may be appropriated with the expectation that it
will achieve the desired results. Due to the lack of seniority of mostlSF water rights, this hypothesis
often may take many years to tcst since the water right itself rarc!y immediately brings any wet
water to the environment in neell of its protection.

In considcring a requcst for modification the Board in clTcct offcrs a secondary hypothcsis, that a
rcduccd instream flow water right will continue to protect a natural environment to a reasonable
degree. The opportunity to establish or refute a scientific basis for such a secondary hypothesis. but
not necessarily to test it empirically - is .appropriately provided for in the proposed new Section
10.53.

Unlcss thc Board intcnds its detcrmination of "reasonablc" in respect 10 the dcgrcc of protection ofa
natural environment to bc an clastic standard, we must assume that such protection provided by a
dcercascd ISF will be substantially equal to thc protection providcd in the original appropriation. In
evaluating a request to modify the floard has an opportunity to test its secondary hypothesis
empirically by actual field mea.~urements, but denies itsclfthat opportunity with the dircction givcn
in proposed new language in Section 10.40. To correct that deficiency I offer this alternative new
language for the Board's consideration, with discussion following.

K.N CLARlC.lII 444 HAMISCN Ave. FT. LUl"TCN .CO 80621
CRI303.SS7.9437 101303.441.4250 IFI303.S3Q-1137