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Colorado Water Conservation Board January 7, 2008 Page 6 N em.burg agrees not to dive11 water into the "Trout Creek Fishery Chromel No.1" until additional mitigation measures are in place. Specifically, Mr. Nearburg will construct a minimum of three (3) additional pool habitat structures on Trout Creek, the upper-most such structure to be located within 200 feet of the point of diversion for the Trout Creek Fishery Channel No.1, and the remaining structures to be constructed above the point of return to Trout Creek for the Trout Creek Fishery Chmmel No. 1. Such structures shall be similar in nature to the habitat structures previously constructed on Trout Creek by Mr. Nem.burg for stream restoration and habitat purposes, mId shall generally be designed to consolidate the braided channels into a single thread, decrease the bmllcfull chmmel width/depth ratio, stabilize the banks, and include boulder structures for stabilization and pool creation. 2. Maintenance. Mr. Nearburg will commit to maintain the structures rold improvements in Trout Creek 1hat provide the mitigation benefits, and aclmowledge that any injurious diversions to the new structures would cease in the event the mitigation structures and improvements in Trout Creelc are not maintained. 3. Inspection access. Ivlr. Nem.burg will allow access for CWCB and DOW staff to inspect the mitigation structures, subject to reasonable limits and provisions for advance notice. 4. Retained imisdiction. Mr. Nearburg will include in mlY final decree a retained jurisdiction provision allowing the water court to enforce the provisions of the injury with mitigation stipulation as a water matter. 5. Measuring devices. Mr. Nem'burg agrees to install, maintain and replace mlY measming devices deemed by the Division Engineer as necessm'y to administer the terms of the injury with mitigation stipulation and the final decree. Such devices shall include a gage on Trout Creek, with a continuous recorder, to be located above the "Rmllcin Reservoir Headgate," which headgate location is shown on the figme attached as Exhibit A to the enclosed draft Stipulation. Altemately, if location of a gage above the Rmllcin Reservoir Headgate is not feasible, then the gage on Trout Creek may be located at such other location to be determined by Mr. Nem.bmg and subject to the reasonable approval of the CWCB staff. 6. Whirling disease BMPs. Mr. Nem.burg agrees to confer with the DOW concerning best management practices for the Trout Creek Fishery Channel Nos. 1-5 structures to reduce the spread of whirling disease. III. Conclusion. The major str.emll restoration mId habitat improvement work performed by Mr. Nearburg 011 Trout Creek provides the mitigation necessm'y for the CWCB to continue to preserve the natural envirol11nent to a reasonable degree on Trout Creek, in spite of mlY iqjury that could otherwise result from diversions into the Chmmels. 11r. Nearbmg has restored over 8500 linear feet of Trout Creek and increased the ability of tIns restored reach to meet tIle CWCB' s hydraulic