09

• Board Meeting Date: 7/11/2007
• Description: ISF Section - Request for Authorization to Proceed to Trial - Case No. 1-95CW256, Application of the Colorado Water Conservation Board on the Fall River
• Board Meetings - Doc Type: Memo

STATE OF COLORADO

MEMORANDUM

Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone: [phone]
FAX: [phone]
W\'IlW .cwc b.sta te.co.us

To: Colorado Water Conservation Board Members

From: Linda Bassi
Stream and Lake Protection Section

Date: July 3,2007

Re: Agenda Item No.9, July 11-12, 2007 Board Meeting: Request for Aut!
Proceed to Trial -- Case No. 1-- 95CW256, Application of the Coloradc
Conservation Board on the Fall River

This CWCB instream flow ("ISF") application on the Fall River in Clear Creek County is set for a
3-day trial beginning on August 27,2007 in Greeley. The Board applied for an ISF water right
on the Fall River extending from an unnamed tributary near the headwaters of the Fall River to
the confluence with Clear Creek in the amounts of 5.25 c.t.s. (May 1 - Sept. 30) and 2.00
c.t.s. (Oct. 1 - April 30). Central City and the Agricultural Ditch and Reservoir Company are
the remaining opposers in this case, although the Agricultural Ditch and Reservoir Company
has indicated it will not proceed to trial in this matter.

Among other issues, Central City has challenged the CWCB's water availability analysis and the
basis for the CWCB's claimed appropriation date of July 24, 1995. On behalf of the CWCB, the
AG's office recently filed two Motions for Determination of Question of Law addressing issues of
(1) the relative seniority of the ISF and Central City's Fall River pipeline exchange and (2) the
standard of review the court must apply in reviewing the Board's three determinations regarding
the ISF appropriation. Since the filing of those motions, the parties have explored a new
settlement option and believe that a mutually acceptable resolution of this case can be reached.

Based upon the recent settlement negotiations, the parties filed a joint motion to vacate the trial
and remaining deadlines and to stay the pending motions. Judge Klein denied the motion to
vacate the trial but granted the motion to stay the pending motions. The Order requires the
parties to report on the status of settlement negotiations by July 20, 2007. The Judge is
requiring more tangible proof that a settlement will be reached before he will vacate the trial.
Engineering consultants for Central City are presently working with CWCB and DOW Staff on
the technical aspects of the pending settlement. The AG's office is currently negotiating the
terms of a stipulation with Central City so that counsel for Central City may present an overview
of the settlement terms to the City Council when it meets on July 3, 2007. The AG's Office
expects to finalize a stipulation with Central City by the end of July. However, staff is requesting
authorization to proceed to trial to ensure that, should settlement negotiations fail, staff and the
AG's Office have authority from the Board to prosecute this case in water court.

Colorado Water Conseryation Board
Flood Protection. Water Supply Planning and Finance' Stream and Lake Protection
Water Supply Protection. Conservation and Drought Planning