STATE OF COLORADO
COLORADO WATER CONSERVATION BOARDDepartment of Natural Resources 721 State Centennial Building 1313 Sherman Street Denver, Colorado 80203 Phone: (303) 866-3441
M E M O R A N D U M
TO: Members, CWCB
FROM: Bill McDonald
DATE: April 23, 1985
SUBJECT: Agenda Item 18e, May 3, 1985, Board Meeting- Proposed Procedures Concerning Filing of Statements of Opposition Introduction Richard D. Lamm Governor J. William McDonald Director David W. Walker Deputy Director
At its May 4, 1984, meeting, the Board adopted revisions to Section VII of the "Procedures for the Administration of the Instream Flow/Natural Lake Level Program." Section VII deals with the procedures for filing statements of opposition and
protests to referee's rulings. It states that the director shall file Statements of Opposition and protests to referee's rulings
" whenever potential i,njury, regardless of magnitude, exists
to a CWCB water right" (emphasis supplied).
Since implementing these procedures, the staff has filed a number of Statements of Opposition in which the degree or
magnitude of injury has been, in our opinion, insignificant. In these cases the staff has recommended, and the Board has
approved, the withdrawal of the Statements of Opposition without further pursuing the case.
Discussion
Considerable time, effort, and cost is expended by our staff and the Attorney General's staff in reviewing these cases, filing Statements of Opposition, presenting the cases to the Board, and ultimately withdrawing the Statement of Opposition. Staff time· and costs could be saved if the Board would give the staff the discretion to decide whether a Statement of Opposition ·should be filed and presented to the Board for ratification when the
magnitude of injury is very small. I believe that such savings could be effected without adversely impacting the protection of the Board's instream flow rights.
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We therefore propose revisions to the "Procedures" which would give the director such discretion. · The guidelines under which this discretion would be exercised would be as follows:
a) If the degree of potential injury to an instream flow right is one percent or less of the CWCB water right, the director would have the discretion to decide, based on a staff analysis of pertinent factors, whether a Statement of Opposition should be filed or not,
b) If the degree of potential injury is greater than one percent, a Statement of Opposition would have to be
filed on behalf of the Board, and
c) All Statements of Opposition filed on behalf of the Board would still be brought to the Board for
ratification with a staff recommendation on whether the case should be pursued further.
Under these guidelines the staff would continue to evaluate the effects of all applications on the Board's instream flow
appropriations, but i t would file Statements of Opposition in only those cases in which the potential injury is significant.
Although protests to referee's rulings have not been filed within the last year, we recommend that the same criteria apply to the filing of both Statements of Opposition and referee's rulings.
Staff Recommendation
The staff recommends that the Board approve the proposed revisions to paragraph A of Section VII of the "Procedures" as presented in the attachment. The remainder of Section VII would not be changed.
/bvm
Attachment: as stated
Proposed Revision to "Procedures"
VII, Procedures for Filing Statements of Opposition and Protests
to Referee's Rulings
A, The director shall request the Attorney General to file
statements of opposition and protests to referee's rulings on behalf of the CWCB whenever THE DEGREE OF potential injuryT Pega~e±ess e£ magaietlde, exises
to a CWCB water right EXCEEDS ONE PERCENT OF THE CWCB
WATER RIGHT AS DETERMINED BY THE CWCB STAFF, WHEN THE
DEGREE OF POTENTIAL INJURY IS ONE PERCENT OR LESS, THE DIRECTOR SHALL FILE A STATEMENT OF OPPOSITION OR
PROTEST TO REFEREE'S RULING Stteft s~a~emea~s eP ~Pe~es~s sfta±± ee £ired only when the director has reason to believe that a CWCB water right may be
SIGNIFICANTLY injured if an application for a change of
water right or plan of augmentation is approved ..
[The new language is capitalized and the old language to be deleted is lined out]
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att/m/ai
