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, . f' . . e ADDITIONAL TERMS AND CONDITIONS OF INJURY WITH MITIGATION 1. The CWCB should recognize (a) that the Blue River Fish Habitat Improvements described in the section titled "Description of Mitigation" of the main report (completed under US Army Corps of Engineers CW A Section #404 Individual permit 200175076) have substantially improved fish habitat conditions in the Blue River through the Oxbow Reach and (b) that these improvements have enhanced the natural environment and created conditions that will support the continued pres~rvation of the natural environment to a reasonable decree at those times when flows are lower than the decreed ISF amount. 2. The CWCB should also recognize (a) that the completion of the Oxbow/Floodplain Fish Habitat Improvements (authorized in US Army Corps of Engineers CW A Section #404 Nationwide 27 Permit #200575261) provides substantial improvements for the support of aquatic biota in the Oxbow Reach of the Blue River, (b) that any additional evaporative depletions caused by the Oxbow/Floodplain Fish Habitat Improvements are diminutive, (c) that S.G.Company's augmentation plan provides replacement of evaporative depletions associated with the Oxbow/Floodplain Fish Habitat Improvements during the irrigation season, and (d) that potential evaporative depletions and phreatophyle/vegetation consumptive use associated with the Oxbow/Floodplain Fish Habitat Improvements during non-irrigation months do not require augmentation in order to maintain the suitability ofthe Blue River for support of biota during this period. 3. S. G. Company may, at its discretion, continue periodic monitoring of tisheries/macroinvertebrates to determine the effects (if any) of the Blue River Fish Habitat Improvements and Oxbow/Floodplain Fish Habitat Improvements on the affected stream reach. S.G. Company will monitoI-river flows to verify compliance with the flow-sharing agreement. Reports of such monitoring, when completed by S.G. Company, will be provided to the CWCB and the Colorado Division of Wildlife. 4. The Blue River Fish Habitat Improvements referenced above were designed to be permanent improvements to the Blue River. It is S.G. Company's intention to maintain the Blue River Fish Habitat Improvements and S.G. Company will use its diligent, reasonable and good faith efforts to maintain the Blue River Fish Habitat Improvements. In the event that S.G. Company does not maintain, in serviceable condition, at least 80% of the Blue River Fish Habitat Improvements as determine by CDOW or the CWCB in consultation with S.G. Company, then S.G. Company will agree to not make diversions into the Oxbow/Floodplain Fish Habitat Improvements. For example, ifmore than 20% of the Blue River Fish Habitat Improvements are not maintained in serviceable condition, then S.G. Company may not be allowed to divert water out-of-priority vis-a.-vis the ISF to the Oxbow/Floodplain Fish Habitat Improvements. This condition does not apply to diversions of water available in priority. Provided, however, ifS.G. Company disagrees with the CDOW's or the CWCB's determination that S.G. Company has not maintained, in serviceable condition, at least 80% of the Blue River Fish Habitat Improvements, then S.G. Company may retain an independent €K~ibl.t C-