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Response to Motion to Intervene Page 3 . instream flow right would be downstream, such a requirement would have only limited practical impact. Thus, because PacificfDesert's adjudicated and unadjudicated water uses are upstream of the instream flow right and are protected under the priority system and C.R.S, ~ 37-92- 102(3)(c), denying its Motion to Intervene to chaIJenge the instream flow appropriation will not prejudice it in any substantial way, Moreover, even ifPacificfDesert is not allowed to intervene in this administrative proceeding, it would have the opportunity to raise its concerns regarding the instream flow appropriation in the water court, In fact, the three issues that are before the Board in this administrative proceeding - whether there is a natural environment that can be preserved to a reasonable degree, whether the natural environment wili be preserved to a reasonable degree by the water available for the appropriation, and whether such environment can exist without material injury to other water rights - as well as other issues, are all relevant and cognizable in the water court. In light of the existence of this additional opportunity to challenge the instream flow appropriation, denying the Motion to Intervene will not result in prejudice to PacificfDesert, The limited prejudice to PacificfDesert of denying the Motion to Intervene carries significantly less weight that the prejudice to the other parties in terms of time and expense and to the CWCB in terms of the priority that would result from allowing the intervention seven month after the filing deadline, For this reason, and because the ISF Rules.do not provide any mechanism that allows intervention of parties seeking to contest an instream flow appropriation, TV urges the Board to deny the Motion to Intervene, . Respectfully submitted this 7th day of Nove Andrew etemeII Counsel for Trout Unlimited .