BOARD02341

• Board Meeting Date: 1/24/2006
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

WATFR RI(jIlTS UNIT MATTER~

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I. CWCB ISF Application on Gunnison River throul!h the Black ClIIlYon (Case No.
03CW265).

This application has bcen staycd pending the rcsolution of federal litigation.

2. Application o('Citv of Central (Case No. 92CW168).

On November 28,2005, the Colorado Water Conscrvation Board prevailed on appeal
to the Colorado Suprcme Court, when thc Court reversed a ruling by the Division I Water
Court and unanimously hcld that new plans for augmentation arc obligatcd to protect existing
decreed instream flow appropriations from injury. As previously reported, on April 2, 2004,
the Division I Water Court had ruled as a matter oflaw that applicant the City of Central was
entitled to make new, out-of-priority diversions undcr a plan for augmentation including
exchangc without agrccing to terms and conditions sufficicnt to protect an existing decreed
in stream flow right from reduced streamflow within the exchange reach. This decision was
appealed by both the CWCB and the SEO as an elToncous interpretation of the law
govcming augmcntation plans, changes of water rights, and exchangcs. On June 16,2005,
John Cyran on behalf of the CWCB and Alex Davis on behalf of the SEO argued the issucs
before the Colorado Supreme Court. Mr. Cyran and Ms. Davis argued that plans for e
augmcntation that rely upon downstrcam augmcntation sources to replace upstream out-of-
priority depletions are "plans for augmentation including an exchange", and under clear
Colorado law must protect cxisting instream flow rights that are scnior to the new exchange.
The Supreme Court accepted all of the Statc's arguments, spccifically finding that the
noninjury requirement that prevents changcs ofwatcr rights from altering stream conditions
to the detriment of cxisting junior water rights also applics to augmcntation plans affecting
instream t10w rights. Thc Court held that an adjudicatcd instream flow right entitles its
holdcr to maintain the stream conditions existing at the time of its appropriation and to resist
propos cd developments through changes ofwatcr rights or augmcntation plans, regardless of
the means, that in any way materially injure instream flow rights. Thus, any plan for
augmentation that relies upon an upstream cxchange of water may not operate that exchangc
when so doing would cause injury to an instrcam flow right. Thc Supremc Court's decision
resolvcs a question that has long complicated the protection and administration of in stream
flow rights across the state. As a rcsult, at Icast onc outside attomcy has characterized the
Supreme Court's dccision as onc of the most signilicant in the history of Colorado Instrcam
Flow Program.

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

On December 22,2005, the Colorado Water Conservation Board (CWCB), the State a
and Division Engineers for Water Division No.4, and the Uppcr Gunnison River Water _

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