BOARD00085 ‎(2)‎

• Board Meeting Date: 11/14/2006
• Description: ISF Section - Injury with Mitigation - Case No. 5-04CW238, Application of S.G. Company
• Board Meetings - Doc Type: Memo

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Colorado Division or Wildlife EvaluatiOll or Proposal
CWCB and Colorado Division ofWildlife:("CDOW") staff members have visited the site and have
met with S.G. Company's representatives :to discuss this proposal. The CDOW has evaluated the
stream habitat improvement structures on the Blue River and believes that the structures, including
the Oxbow fishery channel, significantly improve the physical condition of the stream channel and
increase the biological potential of the subject reach of the Blue River. Based on the amount of
stream habitat improvements completed, the documented increase in the fish biomass and the low
frequency with which the Board's instream flow amounts will be impacted, the CDOW recommends
that the CWCB approve the attached proposed flow-sharing agreement and mitigation plan. The
CDOW's analysis and recommendation were provided to the Board in July and is available upon
request.

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Staff's Analvsis of the Proposal
Staff, the Attorney General's Office and S.G. Company have negotiated proposed terms and
conditions related to the injury with mitigation proposal that are attached hereto as Exhibit C. Staff
anticipates that, after further refinement of the language, the parties will incorporate the terms and
conditions into a stipulation and the resulting water court decree, along with standard protective
terms and conditions related to the other aspects ofS.G. Company's application.

Western Water Consulting, Inc.'s updated analysis of the timing, frequency and amount of potential
injury to the ISF from diversions into the Improvements under the proposed flow-sharing agreement
flows above Green Mountain Reservoir indicates that diversions into the Improvements will be made
under S.G. Company's junior water right for the Improvements the majority of the time, and not
under the flow sharing agreement. Furthen, S.G. Company's improvements to the physical channel .
of the Blue River and enhancement of the aquatic habitat, including the ability of fish to migrate
back and forth between the Blue River and the Oxbow fishery channel, appear to support the
conclusion that the natural environment of the Blue River in the Oxbow Reach can continue to be
preserved to a reasonable degree under the flow-sharing agreement as a result of the mitigation
provided by S.G. Company.

Starr Recommendation
As stated above, injury with mitigation is a two-meeting process. At the first meeting, the Board
may "conduct a preliminary review of the pretrial resolution during any regularly scheduled meeting
to determine whether the natural environment could be preserved to a reasonable degree with the
proposed injury or interference if applicant provided mitigation." At a subsequent meeting, the
Board may "take final action to ratify, refuse to ratify or ratify with additional conditions."

Staff recommends that the Board:

1) Make a final determination that the natural environment of the Blue River could be preserved to
a reasonable degree with the proposed injury ifS.G. Company provides the proposed mitigation.

2) Ratify the injury with mitigation pretrial resolution and authorize staff and the Attorney
General's Office to incorporate it into a stipulation with S.G. Company that also includes
protective terms and conditions relating to the other potentially impacted ISF water rights in this
case.

Attachments

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Flood Protection. Water Project Plaruting and Finance. Stream and Lake Protection
Water Supply Protection. Conservation Planning