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<br />Should the CWCB propose to take all modifications back to water court or ask the <br />court to approve an administrative process which does not require court approval? <br />Staff believes we should propose an administrative process and that this process should <br />be negotiated during water court proceedings. <br />6. Filin!! Dates: <br />Should the Board file in December 1995 or wait until more of the issues described <br />above are resolved? There is clear consensus that the Board should file water right <br />applications in December, 1995 and staff recommends making the filings within this time <br />frame. <br />7. Delaved Enforcement Provisions: <br />Can a delayed enforcement provision be included for the Base Flow to avoid <br />complications with small depletions and potential selective subordination issues <br />until appropriate augmentation can be established? There appears to be consensus <br />that this is not necessary since the Division Engineer will not begin administration of <br />these rights until they are decreed and thus there should be plenty of time to arrange for <br />augmentation sources. <br />On the Yampa, the Board has indicated there will be no call for administration <br />until adequate augmentation is available, should this condition be limited to I.year? <br />Staff feels there needs to be an incentive for both sides to reach agreement on the Yampa <br />Operation and Management Plan. Staff recommends that given that the Division <br />Engineer will not administer these rights until they are decreed, that there is no reason <br />to further consider this issue since there should be plenty of time to arrange for <br />augmentation sources prior to the decreed entry of these rights. <br />Can delayed enforcement provisions be included in the Recovery Flow to allow the <br />Carve Outs to fully develop? We believe so, staff understands that the mechanism <br />requires further discussion and we recommend that terms and conditions be negotiated <br />during water court proceedings. <br />8. BVDass Flows: <br />Is the language in the proposed application adequate to protect against the <br />unintended use of the Base Flow and Recovery Flow rights by federal pennitting <br />agencies as the basis for requiring "bypass flows"? Staff recommends the <br />incorporation of language agreed to in the 92CW286 case when it is final to address <br />this issue. <br />9. Periodic Review Provision: <br />Should the CWCB ask the court for a retained jurisdiction provision to assure <br />correlation between appropriated flows, development and fIShery research? The <br />Board has indicated a willingness to review the need for modification of these rights <br />whenever there appears to be Justification for doing so. There appears to be consensus <br />on this and thus there is no need to address it in the application. There is no apparent <br />interest in a periodic Judicial review, although this issue may be raised during water <br />court proceedings. <br />How do we deal with new T&E species, fish passage and changes in stream <br />conditions which may result from habitat improvements? Staff recognizes these are <br />good reasons for periodic review and that there needs to be further discussion. Staff <br />recommends that to the extent necessary, these issues can be addressed further during <br />water court proceedings and do not need to be resolved prior to filing the applications. <br /> <br />3 <br />