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• Board Meeting Date: 1/23/2008
• Description: ISF Section - Injury with Mitigation - Case No. 3-99CW34; application of Charles E. Nearburg
• Board Meetings - Doc Type: Memo

The Board filed a statement of opposition to this application because the exercise of the
proposed rights could adversely impact the Board's instream f10w ("ISF") water rights listed
below.

CWCB ease Stream Amount Approp. Watershed County
No. ( cfs ) Date
3-84CW166 Trout Creek 35/15 8/16/82 Rio Grande Mineral
3-84CW159 Shallow Creek 3 8/16/82 Rio Grande Mineral
3-83CW039 Rio Grande River 150/65 8/16/82 Rio Grande Mineral
3-83CW042 Rio Grande River 160/80 8/16/82 Rio Grande Rio Grande & Mineral

(See map attached to this memo). This injury with mitigation proposal only addresses impacts to
the Trout Creek ISF water right. The Trout Creek ISF water right extends through Mr.
Nearburg's Trout Creek Ranch property, and diversions associated with certain structures
claimed in Mr. Nearburg's application will occur within the ISF reach. hnpacts to the other ISF
water rights will be addressed separately by protective terms and conditions to be included in the
decree in this case. Additionally, this injury with mitigation proposal is separate from the
CWCB's recognition of Mr. Nearburg's historic diversion of water from Trout Creek through the
Caster Ditch for fishery purposes. Because this use was occurring on or before August 16, 1982,
the date the CWCB appropriated the Trout Creek ISF, the Trout Creek ISF is subject to this use
under section 37-92-102(3)(b), c.R.S. However, it is important to note that Mr. Nearburg has
agreed to reduce the historic diversion rate through the Caster Ditch (from 4 c.f.s. down first to 1
c.f.s, and then to 0.5 c.f.s.) at times when f10ws in Trout Creek are below the decreed ISF amount
to minimize the overall impact of his fishery improvements on streamf10ws in the channel of
Trout Creek.

Improvements to Trout Creek

Charles Nearburg has made significant efforts to restore and improve Trout Creek, which passes
through his Trout Creek Ranch property. Major restoration projects were successfully completed
in both 1998 and 2001 on Trout Creek. These projects restored over 8,500 linear feet of the
Trout Creek stream channell, and involved bank stabilization, shaping of over-widened and
braided channels, removal of excess gravel deposits, installation of 45 rocklboulder cross vane
structures for grade control and to create pools, and installation of 60 rock vanes and additional
woody natural structures for bank protection. Prior to these restoration efforts, Trout Creek
through the Trout Creek Ranch was typically a wide, shallow riffle stream with little or no
holding capacity for fish. These restoration efforts appear to have substantially improved the
hydraulic conditions of the stream and increased the ability of Trout Creek to sustain aquatic
biota and the natural environment with lower f1ows. 2

Extent of proposed injury

The five structures that are the subject of this injury with mitigation proposal are known as the
Trout Creek Fishery Channel Nos. 1 through 5 (the "Channels"). In general, the Channels will
be constructed with one or more ponds located along the course of each channel. Surface water
diverted into the Channels will f10w through and return to Trout Creek. The length of the

1 The 8,500 feet includes the reach of Trout Creek that runs through Mr. Nearburg's property and an old braided side
channel of Trout Creek that fills when flows are high.
2 The restoration efforts are described in significant detail in a May 2007 report from Black Creek Hydrology and
February 2000 reports from Wright Water Engineers. Black Creek Hydrology will give a presentation on the
restoration work and resulting benefits to Trout Creek at the Board meeting.

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