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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

April 30). Depletions associated with evaporation and secondary evapotranspiration from the
Channels are estimated to total between 2.6 and 4.1 acre-feet annually. Under the injury with
mitigation proposal, such depletions will be deemed to occur as the result of sUlface water
diversions from Trout Creek, given the summertime diversions of surface water from the Creek
and the negligible lag in groundwater depletions to the Creek in the winter.

Benefits of mitigation

At the Board meeting, Steve Belz of Black Creek Hyrdrology will give a presentation on the
benefits to the natural environment resulting from Mr. Nearburg's stream restoration and habitat
improvement projects. The first phase of the projects was completed in 1998-99, with additional
work completed in 2001. Excerpts from two reports prepared by Wright Water Engineers, Inc.
in 2000 are attached to this memo as Exhibit 2. The reports describe the benefits of the first
phase of stream restoration penormed by Mr. Nearburg. In general, in the unrestored reach of
Trout Creek, only one of the CWCB hydraulic criteria was satisfied at f10w rates of both 35 c.f.s.
and 15 c.f.s., (the decreed summer and winter instream f10w rates. In the restored section of
Trout Creek, all three criteria were satisfied at a f10w rate of 25 c.f.s., and two out of three
criteria were satisfied at a f10w rate of 15 c.f.s. These findings are significant because, under the
injury with mitigation proposal, diversions of 1 c.f.s. into the Channels will occur only when the
gaged f10w in Trout Creek is above 25 c.f.s. (3 of 3 criteria satisfied). When gaged f10ws drop
below 25 c.f.s., then maximum diversions into the Channels will be limited to 0.5 c.f.s., and
diversions will cease entirely when the gaged f10w in Trout Creek is below 15.1 c.f.s (2 of3
criteria satisfied). Further, the benefits to the natural environment extend to over 8,500 linear
feet of Trout Creek, while the limited impacts from diversions into the Channels will affect
approximately 2,700 feet of the ISF reach ~ providing more than 3 feet of improved stream for
every 1 foot of potentially impacted ISF reach.

Alternatives

The purpose of the Channels is to create additional fishery habitat and deep water refuge on
Trout Creek, as a component of the overall habitat improvement and stream restoration work
penormed by Mr. Nearburg on Trout Creek. Mr. Nearburg has explored the following
alternatives to the injury with mitigation proposal described herein:

1. J\A:r. Nearburg evaluated the possibility of developing or purchasing storage above the
point of diversion for the Channels to augment any diversions into the Channels.
However, the reaches of Trout Creek not far above J\A:r. Nearburg's property are located
on Federal lands, making the development of new storage structures unlikely. One
11. storage structure, Rankin Reservoir, does exist upstream of the Channels; however, Mr.
Nearburg is not the owner of this structure.
111. J\A:r. Nearburg considered the creation of mitigation habitat on reaches of Trout Creek
outside of his Trout Creek Ranch property; however, access and other issues made this
option infeasible. The on-site mitigation that is the basis for this proposal provides more
direct benefits to the affected ISF water right.

Colorado Division of Wildlife Evaluation of Proposal

CWCB and Colorado Division of Wildlife ("CDOW") staff members have visited the site and
have met with Charles Nearburg's representatives to discuss this proposal. Based upon the
substantial amount of stream habitat improvements completed, the documented increase in fish
biomass, and J\A:r. Nearburg's agreements to reduce historical diversions through the Caster
Ditch and to confer with the CDOW concerning best management practices regarding the Trout

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