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. . STATE OF COLOMD o COLORADO WATER CONSERVATION BOARD Department of Natural Resources 721 State Centennial Building 1313 Sherman-Street Denver, Colorado 80203 phone: (303) 866-3441 (:) I-" .... '-" U' CONFIDENTIAL MEMORANDUM Roy Romer Governor J. William McDonald Director David W. Walker Deputy Director TO: Members. CWCB FROM: Bill McDonald DATE: November 17. 1988 SUBJECT: Agenda Item 21c, November 28-29, 1988, Board Meeting-- Aurora, Arapahoe county, and Upper Gunnison WCD Cases (in Executive Session) As you will recall. these cases raise two legal issues of interest to the Board: (1) the assertion that the water court should apply the pUblic trust doctrine and otherwise take into account "public interest values" in acting on applications for water rights, and (2) the Upper Gunnison Water Conservancy District's claim that it could appropriate a storage right for the purpose of releasing stored water for downstream, instream flow (i~-channel) uses. The water court ruled a few months ago that it ~ould not apply the public trust doctrine. It also ruled that the Upper Gunnison WCD could appropriate the claimed storage 'right. Appeals on both issues were taken to the Supreme Court, with the Board appealing its loss in the Upper Gunnison WCD cases. The issue there became whether the water court's rUlings were final judgments subject to appeal. The Board took the position that they were. Some parties agreed with the Board and others disagreed. The Supreme Court has just ruled that neither of the water court's decisions were final and appealable. Therefore, all appeals ~ave been dismissed and the cases have been remanded to the water court for a full trial on all issues. Wendy Weiss will brief the Board orally at the Board meeting on what will happen next. No action by the Board will be necessary. JWM/gl 8715E