BOARD02394

• Board Meeting Date: 11/15/2005
• Description: ISF Section - Horsefly Creek - Motion to Intervene and Notice to Contest
• Board Meetings - Doc Type: Memo

2, PacificlDesert is concerned that flows on Horsefly Creek may be
insufficient to meet the ISF flow recommendation, As stated in the executive summary .
of the Horsefly Creek ISF published by the CWCB, the hydro graph for the ISF was
derived from data that is over fifty (50) years old, The CWCB relied upon data
collected by the USGS stream gage for Horsefly Creek near Sams, Colorado, for the
1942-1951 period of record. Stream conditions have changed substantially since 1951,
In October 1958, Pacific/Desert's predecessor repaired and reconstructed the Paxton
Reservoir to its capacity of 717 acre feet, and completed the construction of the Paxton
Ditch, which diverts water from Horsefly Creek and the several small draws and creeks
traversed by the ditch, The 1942-1951 study period for the ISF hydro graph also
preceded the adjudication of the Finch Reservoir, which was decreed in 1973 for 21,900
acre feet (conditional), As stated in the proposed stipulation between the CWCB and
the Eldred Family Limited Partnership, Eldred plans to develop the Finch Reservoir and
Finch Reservoir Feeder Ditch water rights, which will further reduce the flows available
in Horsefly Creek during the spring runoff period,

3, Pacific/Desert urges the CWCB to postpone the Water Court filing and
obtain additional flow data during the spring 2006 runoff period, The CWCB has the
statutory responsibility to ensure that the ISF is for the minimum stream flow necessary
to preserve the environment to a reasonable degree, based upon flows actually available
for the appropriation, See C,R.S, S 37-92-102(3), If the amount of the claimed ISF is
overstated (based even in part upon fifty-year-old data) the ISF can exacerbate the
burden of a call on the over-appropriated Horsefly Creek system, It is also worth
noting that the CWCB has not defined the point where the ISF will be measured for .
purposes of a call on Horsefly Creek,

4, CWCB's staff argues that a 2006 priority date for the ISF will prejudice
the filing, Pacific/Desert submits that to the extent that there is any prejudice, it is
outweighed by the need to continue the proceedings to allow the CWCB to fulfill its
statutory responsibilities of determining that water is available for the ISF
appropriation, and that the natural environment to be preserved by the ISF can "exist
without material injury to water rights," See C,R,S, S 37-92-102(3)(c), The CWCB's
exercise of these responsibilities has an important bearing upon the Water Court
proceedings to adjudicate the ISF, Indeed, the CWCB must make the findings required
by Section 37-92-1 02(3)(c) before initiating the water rights filing with the Water
Court. Therefore, it is important for the CWCB to ensure that the public has a
meaningful opportunity to participate at the agency level and submit data and other
information regarding flow availability and injury to water rights,

5, Pacific/Desert appreciates that the CWCB' s staff has committed to
address PacificlDesert's concerns before filing the Water Court application for the ISF,
And Pacific/Desert commits to working with the CWCB's staff, Pacific/Desert
nonetheless urges the Board to exercise its discretion and grant the motion to intervene,
so that the CWCB can consider Pacific/Desert's concerns at the agency level before
making the statutory findings required by Section 37-92-102(3)(c),

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