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Ms. Mitchell and Ms. Ris December 14, 2018 Page 2 of 9 application during 2014 and 2015 and assisted the Catlin Pilot Project applicants in developing the “pay-as-you-go” return flow method. The Applicants state that Super Ditch and the Lower Arkansas Valley Water Conservancy District have been “successfully operating” the Catlin Pilot Project and seek to “build on the lessons learned from the Catlin Pilot Project.” Proposal at 1, 2. The Catlin Pilot Project has not consistently operated according to its terms and conditions. For example, the accounting posted on the Division Engineer’s website 1 during 2018 shows that exchanges of water for the Catlin Pilot Project were operated without advance approval by the Division Engineer on: May 5-6, May 10, May 12, June 10, June 23-24, July 9-10, July 13 and July 18-30, 2018. This operation was contrary to stipulated term and condition number 28 of the Joint Conference Report for the Catlin Pilot Project (Jan. 6, 2018) that was adopted by the State Engineer and CWCB.2 There were also exchanges operated during 2018 on the following dates such that intervening water rights were prevented from diverting the full amount of water from the Arkansas River to which such rights would otherwise be legally and physically entitled in the absence of the Catlin Pilot Project exchange: May 1-7, May 9-10, May 12-13, June 27-28 and July 24-25, 2018. This operation was contrary to agreed term and condition number 30 in the Joint Conference Report. The proposed CS-U Pilot Project has the potential to move up to 5,000 acre-feet of water per year and Applicants acknowledge its “large scale.” See, e.g., Proposal at 7. If the Proposal had been filed in water court, it would qualify as a “significant water development activity” subject to special terms and conditions. C.R.S. §§ 37-92-103(10.7); 37-92-305(4.5)(b). Accordingly, the Criteria require that “[f]or any proposed pilot projects with transferrable consumptive use in excess of 1,000 acre-feet per year, the Board shall give special consideration to comments received, if any, and to protecting the interests of other water users and the state’s water resources before granting approval.” Criteria § II.D (emphasis added). The large scale of the CS-U Pilot Project means that it has greater potential to cause injury to other water users. It will be important to prevent upsets like the ones that occurred with the Catlin Pilot Project during 2018 when operating the CS-U Pilot Project. Tri-State supports the CWCB’s selection of the Proposal so long as critical terms and conditions presented in these comments are included. At this early stage, many crucial details of the CS-U Pilot Project have not been developed, and Tri-State’s requested terms and conditions are focused on developing these details before the application stage of the Pilot Project. First, Tri-State requests that Applicants identify all specific farms, water rights and structures that will be included in the CS-U Pilot Project as part of the forthcoming application to the CWCB. Second, Tri-State requests that Applicants present a firm plan to replace return flows as part of 1 http://water.state.co.us/DWRDocs/News/Pages/ApprovedPilotProjects.aspx. 2 The State Engineer adopted agreed items from the Joint Conference Report in his Written Determination of the State Engineer, HB13-1248 Catlin Fallowing-Leasing Pilot Project (Jan. 16, 2015). The CWCB adopted the State Engineer’s Written Determination in its written decision dated March 11, 2015.