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Trisha Oeth, <br /> Page 2 of 3 <br /> August 4, 2016 <br /> Cherokee's Proposal is Limited to Water Quality <br /> For our consideration of material injury to water rights, we have reviewed the nature of <br /> Cherokee's proposal. From our review of the proposal and analysis of the materials, we <br /> understand that the proposal before WQCC requests a change to the TDS levels of the <br /> water that will be recharged into the aquifer of the Upper Black Squirrel Creek alluvium <br /> and, therefore, potentially the TDS level of the ground water itself. The subject of the <br /> proposal is, therefore, a water quality matter. <br /> Analysis of Material Injury to Water Rights <br /> We have considered the potential water quality changes and the resulting potential <br /> changes to the use of water in the Upper Black Squirrel Creek Designated Basin. While we <br /> understand that changes to water quality may potentially impact water users in terms, for <br /> example, of types and number of acres of crops that can be grown and the amount of <br /> water that must be applied to a crop, we do not regard this as "material injury to water <br /> rights," as articulated in the language of the statutory consultation provision. <br /> In considering the scope of what entails "material injury to a water right," we consider <br /> material injury from a water quantity perspective. If an action that is not justified by the <br /> law or other means creates a situation where the water supply is diminished such that the <br /> owner of a water right cannot divert the full amount to which they are entitled, as <br /> needed, we would consider that material injury. The Colorado Supreme Court has stated <br /> that "(a) classic form of injury involves diminution of the available water supply that a <br /> water rights holder would otherwise enjoy at the time and place and in the amount of <br /> demand for beneficial use under the holder's decreed water right operating in priority." <br /> It's true that this language says only that "a classic form of injury..." not "the only form of <br /> injury..."; however, we find no complementary language from the courts, the statutes, or <br /> in the Designated Basin Rules [2 CCR 410-1] that would bring water quality impacts into the <br /> definition of material injury. <br /> To further support this understanding of the scope of material injury, we note that <br /> Designated Basin Rule 5.6.1.D, which requires "[p]roof that the plan will not cause <br /> unreasonable impairment of water quality" stands in contrast to Designated Basin Rule <br /> 5.6.1.C, which requires "(p)roof that the plan will not cause injury to water rights of other <br /> appropriators." Because the Ground Water Commission has two measures, one for <br /> "unreasonable impairment of water quality" and one for "material injury to water rights," <br /> we conclude that the Ground Water Commission did not intend to equate water quality <br /> impacts to material injury to water rights. The fact that water quality impacts may be <br /> exacerbated by the possible existence of a "closed basin" hydrogeologic situation only <br /> raises the magnitude of the water quality concern but does not bring it into the realm of <br /> "material injury to water rights." <br /> Summary <br /> Therefore, while we note that there is significant evidence before WQCC from experts <br /> regarding the potential impacts that changes in water quality may have on irrigators in the <br /> Upper Black Squirrel Creek Basin, which impacts may be exacerbated by the possible <br /> existence of a "closed basin" hydrogeological situation, we have no unique expertise on <br /> this water quality evaluation and defer to the WQCC on whether it should consider those <br /> Prt <br /> 1313 Sherman Street, Denver, CO 80203 DWR: 303.866,3581 CWCB:103 866 3441 https://cdnr.us/#/start BB WW1 B 8 3 <br /> r .,, <br />